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| SCO, Meet the GPL -- IBM's Legal Cavalry Charges |
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Thursday, August 07 2003 @ 07:08 PM EDT
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I've seen the papers. I can't post them, but they'll be available in due course,
either tomorrow or more likely the day after at the Utah courts, via
Pacer. Here's an advance peek: There are ten, count them,
ten counterclaims. The main theme is this: that SCO has been
misleading the world by falsely stating that IBM's license has been
terminated. It was never terminated, they say, in part because it is
irrevocable and also because it was a 3-way contract, and Novell, the
third party, stepped in and blocked the attempt at termination. And SCO, the papers charge, is in violation of the GPL and has had its rights to distribute GPL code terminated.
Further, SCO has misleadingly overstated its rights to UNIX, AIX, and IBM's Linux-related products, for its own financial benefit, IBM charges. Its false statements have damaged IBM's reputation, interfered with its prospective business, both AIX and Linux-related, and violated the GPL. SCO is trying, the papers say, to assert rights it does not have by falsely claiming the right to terminate IBM's irrevocable
and perpetual UNIX rights. Further, SCO committed not to assert
certain proprietary rights over or restrict further distribution of
any GPL source code distributed by SCO when it
itself distributed the code under the GPL. IBM contributed code to Linux under the GPL on the condition that users and distributors, including
SCO, abide by the terms of the GPL. But SCO, IBM says, has taken source
code made available by IBM under the GPL, included that code in SCO's
Linux products, and distributed significant protions of those products
under the GPL. By doing so, SCO accepted the terms of the GPL (Section
5). The GPL prohibits SCO from asserting proprietary rights (such as the right to collect license fees), or attempting to restrict distribution of any source code distributed by SCO under the terms of the GPL. As a result, SCO's right to distribute the copyrighted works of others included in Linux under the GPL have been terminated pursuant to Section 4 of the GPL. They also claim breach of contract, violations of the Lanham Act, unfair competition, intentional interference with prospective economic relations, and unfair and deceptive trade practices. Here's how IBM says SCO breached the GPL, by: 1. claiming ownership rights over Linux code, including IBM contributions 2. seeking to collect and collecting license fees for that code 3. copying, modifying, sublicensing or distributing Linux on terms other than those set out in the GPL and after its rights under th GPL terminated 4. seeking to impose additional restrictions on the recipients of Linux code
IBM requests an injunction against such further breaches and damages to
be determined at trial.There are four patent infringement
claims, respecting the following patents:
1. Patent No. 4,814,746, Data Compression Method (being infringed by UnixWare and Open
Server;
2. No. 4,821,211, Method of Navigating Among Program Menus
Using a Graphical Menu Tree (SCO Manager infringes);
3. No. 4,953,209, Self-Verifying Receipt and Acceptance System for Electronically Delivered Data Objects (UnixWare infringes);
4. No. 5,805,785, Method for Monitoring and Recovery of Subsystems in a Distributed/ Clustered System (Reliant HA infringes). Relief IBM is requesting:-
compensatory damages
- damages pursuant to 15 USC Section
1117(a)
- punitive damages
- treble damages pursuant to 35 U.S.C. Section 284
- declaratory relief, ruling that SCO has violated IBM's rights
- injunctive relief, enjoining and restraining SCO from
further misrepresenting SCO's rights and IBM's rights to UNIX technology or that IBM no longer has the right to use, produce and distribute AIX and Linux-related products; from publishing false and disparaging statements about AIX and IBM's Linux-related products; or claiming ownership rights over code made available under the GPL; from further infringement or inducement of infringement of their patents
- costs, expenses and attorneys' fees
- pre and post-judgment interest on the damages
What does it all mean? First, IBM is saying that the code it put in to Linux was theirs to donate and that SCO has wrongfully used it in violation of the code's license terms. That would be the GPL. Unless I missed the drift, IBM just let SCO know that the allegedly infringing code isn't SCO's, because they themselves accepted it under the GPL and redistributed it under the GPL. That means that part of their code just joined the free world, according to the papers. Further, as a result of violating the GPL, they now have no rights to distribute GPL code. That goes to the heart of their new business model of using Linux apps on top of a UNIX kernel. If the court grants the injunction, then further infringement of the GPL is forbidden, which would include the license plan. It also means that while Darl was shooting his mouth off, IBM was taking notes, and the majority
of the other counterclaims are based on SCO spokespeople saying things
to the press that IBM says were deceitful and damaging and derogatory,
harming IBM's business and reputation, harming the reputation of Linux,
and interfering with its potential customers, and they say their tortious conduct was and is willful and deliberate, hence they should be fined treble damages,
because, they tell the court, this is an exceptional case, meriting such
sanctions. They also ask the court to stop them from any further infringement
of their four patents by ordering SCO to quit manufacturing or selling
or distributing the infringing products listed above. So, if the court says yes,
that's pretty much the end of SCO's business, both software and the
licensing plan. IBM sales people, in an internal memo from Bob Samson, Vice President, Systems Sales, IBM Systems Group, today were encouraged to turn people to the OSDL website to read "Questioning SCO: A Hard Look at Nebulous Claims," by Eben Moglen, General counsel of the Free Software Foundation, and to let everyone know, that as this lawsuit goes foward, "the industry will resolve it." Man, I believe them. IBM, it appears, fully intends to turn SCO into mincemeat. And dear Darl was just the man to hand them the weapons to be able to do it. And finally, a song of praise to the GPL. It's shining hour has arrived. And it is shining manfully. If you were longing for the GPL to have its day in court, you just got it. It is leading the charge.
Update:
Here's SCO's press release in reaction: SCO Media Statement Re IBM Counterclaims
LINDON, Utah, Aug 07, 2003 -- We view IBM's counterclaim filing today as an effort to distract attention from its flawed Linux business model. It repeats the same unsubstantiated allegations made in Red Hat's filing earlier this week. If IBM were serious about addressing the real problems with Linux, it would offer full customer indemnification and move away from the GPL license. As the stakes continue to rise in the Linux battles, it becomes increasingly clear that the core issue is bigger than SCO (Nasdaq: SCOX), Red Hat, or even IBM. The core issue is about the value of intellectual property in an Internet age. In a strange alliance, IBM and the Free Software Foundation have lined up on the same side of this argument in support of the GPL. IBM urges its customers to use non- warranted, unprotected software. This software violates SCO's intellectual property rights in UNIX, and fails to give comfort to customers going forward in use of Linux. If IBM wants customers to accept the GPL risk, it should indemnify them against that risk. The continuing refusal to provide customer indemnification is IBM's truest measure of belief in its recently filed claims.
Regarding Patent Accusations
SCO has shipped these products for many years, in some cases for nearly two decades, and this is the first time that IBM has ever raised an issue about patent infringement in these products.
Furthermore, these claims were not raised in IBM's original answer.
SCO reiterates its position that it intends to defend its intellectual property rights. SCO will remain on course to require customers to license infringing Linux implementations as a condition of further use. This is the best and clearest course for customers to minimize Linux problems.
And here's Groklaw's text version of the IBM Answer with Counterclaim [PDF]. Note that there was later an amended version filed, after SCO amended its Complaint, but this is the Answer with Counterclaims filed on this date by IBM. Here's the final version of IBM's
Answer [text], and here's the final 2nd Amended Counterclaim
[text].
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| Authored by: Anonymous on Thursday, August 07 2003 @ 04:43 PM EDT |
| I'm going to go a step further here, PJ, and note something interesting. SCO has
stepped on EVERYONE'S toes. Not just RedHat and IBM's. I think that what we've
seen this week is nothing but the first two rocks in the avalanche. I expect to
see any/all of the following firms suing SCO. Sharp (Zaurus), TiVO, SuSE,
(already telegraphed their punch) Mandrake, HP, Dell, Oracle, the SEC, the FSF,
state, federal, and local attorney generals, the OSI, the OSPF, kernel
developers who are going after SCO for licensing their code, etc., etc., etc.. A
month from now SCO will be defending themselves in a dozen states and maybe even
some foreign countries, and their stock will be worth dick.
Won't that be wonderful!!
Alex
Alex Roston[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 04:50 PM EDT |
| I'm grinning like the Cheshire Cat!
Don't forget the US Governments' use of Linux systems.... ;-)
Where's the popcorn? The fireworks are on!
Cambo[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 04:53 PM EDT |
| I've also read elsewhere (sorry, I don't remember the site) that Darl & friends
derogatory comments may have "pierced the corporate veil" and opened themselves
to personal liability.
Is this true, or just wishful thinking. I just hate the idea of Darl laughing
all the way to the bank, having dumped all of his stock.
Bill
Bill Blaney[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 04:59 PM EDT |
| Bill,
Perhaps here:
http://radio.weblogs.com
/0120124/2003/07/09.html
?
bob[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 05:04 PM EDT |
If there were to be any suits that name Darl personally, and if SCO were to go
bankrupt, then SCO offering to indemnify him or pay his legal fees, would not be
very helpful for him.
quatermass[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 05:20 PM EDT |
| Bob,
I guess I should've known. :) PJ seems to have all this stuff down cold.
Bill
Blaney[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 05:21 PM EDT |
| This is the reason I love this site: "If you were longing for the GPL to have
its day in court, you just got it. It is leading the charge."
GPL Summer School isn't going to help them now.
Z[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 05:55 PM EDT |
| ahhhh..
just the news we've all been waiting for ever since SCO made their first big
mistake
btw.. Thanks so much for an excellent source of information! I'ts greatly
appreciated
SD[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 05:59 PM EDT |
Did you check out those patents at uspto.gov? These are pretty basic
technologies... wouldnt it be frightening if IBM or Microsoft really started
flexing it's patent muscles. In this case it's funny and cathartic, however
taken to extremes it could be harmful to the software we cherish!
http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=P
ALL&p=1&u=/netahtml/srchnum.htm&r=1&f=G&l=50&s1=4,821,211.WKU.&OS=PN/4,821,211&R
S=PN/4,821,211
http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=P
ALL&p=1&u=/netahtml/srchnum.htm&r=1&f=G&l=50&s1=4,814,746.WKU.&OS=PN/4,814,746&R
S=PN/4,814,746
Salim Fadhley[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 06:04 PM EDT |
| File this one under the heading of "If The Only Tool You Have Is a Hammer,
Everthing Starts To Look Like A Nail"
SCO's response to IBM's counter claims:
"We view IBM's counterclaim filing today as an effort to distract attention from
its flawed Linux business model."
Well they certainly are getting to be experts at distracting attention from
flawed Linux business models...
Harlan[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 06:20 PM EDT |
| Agreed on the subject of patents. I think IBM
is communicating something here, and the message
goes something like this: "We are not just
defending ourselves against these charges. We
are stomping SCO into the ground with extreme
prejudice. If anyone else wants to play the
"attack IBM's Linux business" game, just let
us know, so we can add you to the list of those
who have violated the thousands of patents we own."
IBM could have charged SCO with violating a
thousand patents just as easily, but they
don't want to cause rampant paranoia, just
healthy fear, so they're not flexing their patent
portfolio the way they could if they REALLY FELT
THREATENED. If I may make a comparison to
dinosaurs, what we're seeing here is "Scary
Patent Barney;" something just sufficient to
scare a little baby player like SCO and remind
everyone else that IBM can dump a world of hurt
on anyone who bothers them.
On the other hand, should someone like Microsoft
buy SCO out and take over the suit, "Patent
Godzilla" will rise up out of Seattle Harbor and
and go looking for some satisfaction.
Alex
Alex Roston[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 06:31 PM EDT |
| IBM vs M$ over patents? Ouch! THAT would get painful all round!
Don't think either of them would want to get into anything like that - it would
probably pull in Apple, Xerox, et al.
Not a healthy situation for anyone.
Cambo[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 06:37 PM EDT |
| That's exactly my point. IBM has
just made it clear that they're
willing to go nuclear over this
issue.
I would strongly suggest that
anyone downwind of Linden, Utah
make sure their fallout shelter
is up to current standards.
Those who are within actual blast
radius are advised to evacuate
at once.
Alex
Alex Roston[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 06:37 PM EDT |
| :-)
By the way, would there be any money left in the purse of SCO after IBM wins the
lawsuit?
Or would everyone else be sueing for nothing to be gained? :)
Robvarga[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 06:41 PM EDT |
I'm not a a lawyer, but I think if SCO is bankrupted in this scenario, IBM
and/or Red Hat become
creditors, and probably get a chance to gain whatever assets their might be.
style="height: 2px; width: 20%; margin-left: 0px; margin-right:
auto;">quatermass[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 06:59 PM EDT |
| SCO still offers 'infringing' Linux source code
By Ashlee Vance in Chicago
Posted: 08/08/2003 at 00:22 GMT
SCO has told the public that its version of Linux is no longer for sale due to
its legal pursuit of IBM and Linux users. That much is true. In fact, the code
does not cost a penny with SCO providing a rather swift download site for SCO
Linux.
Close to thirty Reg readers have sent along the following link that leads
directly to a FTP download of the Linux kernel, at the time of this report. It's
part of SCO's OpenLinux 3.1.1.
The funny thing about this source code, which does appear to be on a SCO server,
is it's use of the 2.4 Linux kernel. That's the very kernel that has SCO's
knickers in a twist.
SCO has claimed that IBM illegally threw Unix code into versions of Linux with
the 2.4 kernel and above, and launched a $3 billion lawsuit to prove its point.
IBM has fired back against SCO today with its own lawsuit, claiming that SCO
cannot make claims to Linux code, since it sold its own version of Linux under
the GPL. Big Blue's lawyers might be pleased to find SCO is still in the Linux
distribution business to this day.
Without doubt, the link to SCO's code will disappear shortly after this article
posts, but we would say the damage has already been done.®
http://www.theregister
.co.uk/content/61/32233.html
sn[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 07:02 PM EDT |
By the way, do I see it right, that virtually any person on Earth could sue SCO
claiming, that they wanted to take up distributing Linux, and SCO is unfairly
interfering with possible future business prospectives?
Robvarga[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 07:03 PM EDT |
| I'm more interested in the implications if Novell sold IBM the USL patents and
whatever Unix rights they've still got. I can just see IBM now: "So, you're
claiming to hold the copyrights. We hold the patents, and we can control how
the code is used." After IBM crushes SCO, they just GPL System V, and we never
have to hear about SCO again!
Fun thought.
Frank[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 07:05 PM EDT |
| One thing that differentiates software businesses from hardware is the extreme
lack of assets. I
have seen estimates that if Microsoft were to get into trouble, the stock
options are so large and
the assets are so small that it might literally “implode”.
If IBM breaks SCO in this suit there will not be enough left to pay the janitor.
A few more “.com”
computers will leak out on e-Bay. A few desks and chairs to sell, maybe a little
real estate and
some valueless IP.
But it will be sweet to see GPL rule!!!!!
Pookie[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 07:07 PM EDT |
| Linux kernel source code on SCO's ftp site:
echo ls -R | lftp ftp.sco.com | grep linux-source
Over 470 2.4.* copies are still listed.
Frank[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 07:08 PM EDT |
| Uhm, actually, what did IBM request about the existing deployment of Unixware
and Co?
What will happen to McDonalds, if all Unixware deployments have to be recalled?
:)
Long live Burger King :)))
No flamewar please :) It was solely intended to be a joke :)
Robvarga[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 07:10 PM EDT |
D'you want fries wid dat?
Cambo[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 07:12 PM EDT |
| Actually if IBM or Novell ever gets ownership of System V source, I'd like to
see the code put in the public domain or BSD license. A BSD license would be
particularly appropriate given the history.
The other reason I think this appropriate, is I think it would be nice to make
Unix available to whoever wants it, for whatever reason, to do whatever they
like, as a kind of communal property of humanity. Maximum freedom would spur
technology and economic growth in ways that can't even be predicted.
quatermass[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 07:23 PM EDT |
Ah yes, good point. BSD would be more appropriate.
Frank[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 07:24 PM EDT |
| The 46 page response is now available as a multipage TIFF:
http://www.crn.com/graphics/ib
m_images.tif
and converted to a PDF:
http://www.idealcorp.com/ibm_sco.pdf
Enjoy the read!
Anthony Awtrey[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 07:37 PM EDT |
| Maybe IBM will get the Unix copyrights and give them to the Open Group.
Now I realize that it would be very confusing and unorthodox for the owner of
the trademark
and the owner of the copywrite to be the same party, but we are smart people
and so I think we could handle it
Codeboy[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 08:13 PM EDT |
Here's a theory: someone within SCO is working with an outside party to short
the SCO stock into ZERO. The SCO insiders are already excercising and selling
their shares and options as fast as legally possible without drawing SEC query.
The real money to be made is to short this stock into $0. With this in mind,
most of SCO's behavior in the past 3 weeks makes perfect sense. They want to
implode the company, possibly as quickly as possible.
BigFire[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 08:46 PM EDT |
| I'm no investment advisor, but I think the maximum you could make from shorting
a stock would be the current price of the stock (when it becomes worthless).
On the other hand, if you get options (or have a basis in already bought stock)
say for $0.001, $1, $2, etc. and you later sell it for $10, $12 or $15, you can
make a big multiple of your investment. Of course you have to sell out at the
right time.
quatermass[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 08:46 PM EDT |
re: Microsoft imploding...they have 49 billion in cash.
Mike[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 08:59 PM EDT |
| >> Maybe IBM will get the Unix copyrights and give them to the Open Group.
And mabye IBM will suddenly decide to make ALL their software free! Even though
IBM is the hero of THIS story, they are still very much in the game of
proprietary software.
Salim Fadhley[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 09:23 PM EDT |
| >>> Maybe IBM will get the Unix copyrights and give them to the Open Group.
"The Open Group" is not open. Not in the way you think, anyway.
There's very little GPL or "creative commons" stuff put out by "the Open Group".
As far as I know they don't support GPL much at all.
I think maybe you meant FSF, which is COMPLETELY open.
Sanjeev[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 09:24 PM EDT |
| I just read IBM's response (the multi page TIFF version)
From multi-page TIFF page numbers (which don't match the page numbers in the
images because of header pages),
I would recommend reading
Page 25, paragraph 25
Page 27, paragraph 31
Page 28, paragraph 32, 33, 34
Page 29, paragraph 36
because, as they give some information (according to IBM of course), about the
background sequence of events.
Looking forward to PJ or somebody else more qualified to comment on the legal
aspects of the document, defenses, and counter claims, as well as IBM's prayer
for relief in the defense section.
quatermass[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 09:26 PM EDT |
I hope IBM BSD-licenses UNIX source, if they ever get it. It would be all of
funny, ironic, historically appropriate, and would allow GPL, other open source
licenses, and even closed source (gasp) users to use the stuff.
style="height: 2px; width: 20%; margin-left: 0px; margin-right:
auto;">quatermass[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 09:29 PM EDT |
P.S.
I also find it ironic that IBM use SCO's press releases, media events, and the
first version of SCO's complaint, as arguments in their counter claim.
style="height: 2px; width: 20%; margin-left: 0px; margin-right:
auto;">quatermass[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 09:36 PM EDT |
| Sanjev,
IBM has assigned the copyright of their version of the Kernel to the FSF...
Browse
this blog for info.
SGO/G did not respond to a request of identifing code, for removal...
D.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 09:41 PM EDT |
| More grounds to complain to the SEC?
In their last filing SCO mentioned under risk factors "the industry may not take
kindly to our new licensing posture"
They did NOT mention under risk factors
"Novell has the right to torpedo our entire licensing scheme totally if they so
choose."
"And SCO executives will work hard to make this happen, since SCO executives
plan on insulting Novell in public"
"IBM pushed Novell in our path and we ran over them", said The Darl " anyone
else remember that interview with Darl?
That would be a pretty significant risk factor, no?
Sanjeev[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 09:52 PM EDT |
Man, that response is a killer... 4 counts of patent infringement () and they
even mention that the statute of limitations has run out (I assume, on the
contract that SCO bases it's complaint on). This is hug. A major test of the
GPL and a serious spanking in order for SCO... too bad we have to wait until
2005 for this trial... maybe the redhat case will hobble SCO something fierce
long before then.
joe[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 10:00 PM EDT |
patent numbers that IBM claims SCO infringes are 4814746, 4821211, 4953209, and 5805785.
joe[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 10:02 PM EDT |
I think it would be most appropriate for Unix to become GPL'd. They would have
to rename "GNU" from "GNU is not Unix" to "GNU is now Unix".
Lins Zechesny[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 07 2003 @ 11:29 PM EDT |
| The IBM counter-claim makes the Novell asset transfer, and the three party
Amendment no X as clear as mud. They are both dated 16 October 1996. The
Amendemnt no.X also mentions that it replaces a previous agreement between SCO,
Novell, and IBM dated in April of 1996. Clearly we are talking about a Unix
software license agreement. The copyrights that may have been transferred to SCO
on 16 October of 1996 would have covered the whole product that was licensed,
the three patents that Novell retained would not. Here is the problem, the right
that Novell is claiming to waive breaches in the 1996 Amendment comes from the
original 1995 sales contract in which Novell (originally) retained all of the
patents and copyrights. How can they transfer the copyright property rights, but
still claim to have the power to waive breaches of the source code licenses on
behalf of the new owner?
This has driven me crazy ever since the Caldera SEC filings mentioning their
role as Novell's agent, and the first asset transfer agreement surfaced. Like
Bruce Perens I assumed this meant they didn't own the Unix System V copyrights.
Novell heard about Perens speculation and issued a correction the very next day.
That all happened before the SCO discovery of the second amended asset transfer.
Novell said that SCO only acted as their agent on the ancient code. Well hello,
Caldera put their own copyright notices on all of that and had been releasing it
under a BSD-like license without any attribution to Novell whatsoever. All of
that has since disappeared from the SCO site. Did SCO violate Novell's
copyrights on the ancient code? Exactly what copyrights did Novell transfer to
SCO under the October 1996 amended asset transfer?
Harlan[ Reply to This | # ]
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| Authored by: Anonymous on Friday, August 08 2003 @ 01:50 AM EDT |
| Interesting detail; IBM added a tenth affirmative defence: "SCO has failed, in
whole or in part, to mitigate its alleged damages"
I guess it's IBM saying "Hey judge, if you may find that I hurted SCO; they
asked for it, so they take part of the blame too"
MathFox[ Reply to This | # ]
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| Authored by: Anonymous on Friday, August 08 2003 @ 03:29 AM EDT |
| I am reading IBM's counterclaim and really enjoying this section (page 21-22):
B. SCO, Linux and the GPL
12. In 1944, SCO was formed under the name ``Caldera, Inc.'' SCO began its
business as a developer and distributor of the Linux operating system.
13. Linux is an ``open-source'' operating system, the development of which
was begun by Linus Thorvalds in 1991. Since then, Linux has evolved through a
rapid collaborative process resembling that of scientific peer review. There is
a large, worldwide community of programmers who routinely read, redistribute and
modify Linux source code in order to improve it.
14. Since its inception, SCO has distributed a number of Linux products,
including SCO Linux Server, SCO OpenLinux Server, SCO OpenLinux Workstation, and
Caldera OpenLinux. SCO also distributed SCO Manager, a proprietary web-based
systems administration tool for managing Linux and UNIX systems. Although SCO
purported to suspend its Linux distribution after the commancement of this
action, SCO has continued to make Linux source code available for download
through its website.
15. SCO has distributed its Linux products under the GNU General Public
License (the ``GPL''), a copy of which is attached hereto as Exhibit H. The GPL
is intended to guarantee ``freedom to share and change free software--to make
sure the software is free for all its users''. Linux is subject to the GPL
because it is comprised of programs and other works that contain notices placed
by contributing copyright holders saying that they may be distributed under the
terms of the GPL. The Linux developers' public agreement to apply GPL terms
expresses in a binding legal form the conscious public covenant that defines the
open-source community--a covenant that SCO itself supported as a Linux company
for eight years.
16. SCO accepted the terms of the GPL by modifying and distributing Linux
products. By distributing Linux 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.
SCO needs a better answer on this in court that they had in their press
release ;)
MathFox[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 04:01 AM EDT |
| Mathfox about mitigating damages
I interpret that to be an allusion to SCO's refusal to give Linux distributors
information they need to produce a non-infringing product after being asked for
it repeatedly.
McBride's blurt that Red Hat wanted to see the infringements to make changes in
disregard of SCO's "business rights" makes it sound like this is the first case
in history where *removing* copyrighted material causes damages.
Since they have offered to remove any questionable code and SCO refused, that
adds even more doubt to their claim that putting it in somehow caused
damages.
r.a.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 04:29 AM EDT |
| Just to clarify, if anyone DOES buy one of SCO's counterfeit "licenses" doesn't
this mean they, the "licensee", has violated the GPL and is thus barred from
copying, modifying, distributing etc. GNU/Linux or anything else bound by the
GPL? As in forever? And thus SCO or anyone else who gets the bright idea to sell
unnecessary licenses for Linux will be barred from so much as giving Linux a
dirty look?
Example: Let's say Sun buys SCO's license. SCO gets obliterated by the Flaming
Sword of GPL Justice. Is Sun then barred from distributing (or anything else)
Linux?
Z[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 04:31 AM EDT |
Another way SCO could have mitigated its damages would have been, when IBM
publicly gave files to all Linux distributors, *including SCO*, for SCO to email
IBM that there was a problem.
r.a.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 04:59 AM EDT |
| Z: it is covered in the GPL:
7. If, as a consequence of a court judgment or allegation of patent
infringement or for any other reason (not limited to patent issues),
conditions are imposed on you (whether by court order, agreement or
otherwise) that contradict the conditions of this License, they do not
excuse you from the conditions of this License. If you cannot
distribute so as to satisfy simultaneously your obligations under this
License and any other pertinent obligations, then as a consequence you
may not distribute the Program at all. For example, if a patent
license would not permit royalty-free redistribution of the Program by
all those who receive copies directly or indirectly through you, then
the only way you could satisfy both it and this License would be to
refrain entirely from distribution of the Program.
You don't violate the GPL when you enter a contract with SCO and declare that
you won't distribute Linux code.
I am not a lawyer, but I can't understand why anybody would want to pay SCO to
enter a contract which limits their rights.
What is more important in the current lawsuits is that SCO is not in the
position to offer a license like they do as
they violate the GPL with that.
MathFox[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 05:16 AM EDT |
| Thanks for clearing that up for me, I was certain I'd read that to be the case
somewhere (probably here) but wasn't 100%.
From what I understand (and I may be wrong), Sun seems to change its tune back
and forth (more back than than forth ala "Linux is irrelevant") when it comes to
GNU/Linux, Open Source and the GPL and I recall a few reports that implied or
gave the impression that Sun might get (or already be) in bed with SCO and that
they might have purchased SCO's useless license (a blunder of craptastic
proportions IMO) and, if they have (perhaps with intent to capitalize on SCO's
idiotic scam), Sun (or anyone else who does so) will have shot itself in the
foot in regards to distributing its own Linux product(s).
Z[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 05:21 AM EDT |
I should underscore the words IF where ever they appear above and make it clear
that this scenario is just me being curious and seeking to understand potential
future ramifications.
Z[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 05:23 AM EDT |
| Sun have made statements about AIX and this issue, and I think run ads too.
They also had some kind of stock deal.
You should be able to find it all with google
anon[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 05:33 AM EDT |
| Is SCO still distributing Linux source? Well, I know you can look at their FTP
site, but let's see what Blake Stowell has to say. It doesn't seem inadvertent.
I hope PJ picks up on this.
http://www
.infoworld.com/article/03/08/08/HNuntestedgpl_1.html
SCO stopped selling Linux in May. Stowell admitted that his company was still
providing Linux source code and security patches on its Web site in order to
fulfill support contracts with customers, but he disputed Kuhn's claim. "If our
IP [intellectual property] is being found in Linux and that's being done without
our say, then I don't think that the GPL can force us not to collect license
fees from someone who may be using our intellectual property," he said.
anon[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 05:57 AM EDT |
| I see in some reports now that its unlikely Sun would have purchased a SCO-Scam
License since they had already purchased a Unix license "a decade ago" to do
what they wanted with Solaris.
So I guess the likelihood of Sun derailing itself in the Linux arena by getting
a SCO-Scam License is nil but the scenario still exists for anyone who actually
does (if anyone) get a SCO-Scam License.
Z[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 06:04 AM EDT |
| The GPL doesn't prevent SCO to go after a company X that added SCO copyrighted
code to the Linux kernel. (Why they go after IBM, for something company X did
baffles me!)
If SCO had checked the code for violation of their own copyrights, before
they distributed it themselves, they would have had a decent case. I am still
not sure whether the end-users would be liable for damages in that case, but the
kernel coders and distributors would be forced to remove the infringing code.
Two or three years later a court would have determined the amount of damages
everyone was due.
MathFox[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 06:20 AM EDT |
| Z: I don't know what Sun's license conditions are; but they are likely to differ
from the Scam License conditions.
If you sign the SCO license you'll need serious legal advice if you want to
do anything with Linux source or Linux distribution. It is better to get the
advice before signing anything with SCO or paying SCO any money.
I love my GPL
MathFox[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 06:39 AM EDT |
"It's a fairly nebulous license," said SCO spokesman Blake Stowell.
http://www.itworld.com/AppDe
v/350/030808gpl/
anon[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 07:03 AM EDT |
With regard to the Sun thing, I believe that they bought a SCO Unix license to
cover themselves from being sued for distributing Solaris. The ability to sell
Linux is just a happy (for Sun) consequence of buying a license for SCO's
proprietary code.
Alex Roston[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 07:36 AM EDT |
| Does anyone know where there's a good copy of IBM's complaint?
I'm only getting the first page of the TIFF, and the PDF copy is unreadable
without blowing it up to 800 percent.
Alex Roston[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 07:46 AM EDT |
Z & MathFox: Sun purchased a licence to use some source code for device drivers
in SCO's x86 Unix, so that they could expand x86 Solaris device support.
Obviously Sun couldn't use the device drivers from the Linux kernel, so they
bought some from SCO.
Dr Stupid[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 07:54 AM EDT |
| Try this for the TIFF viewing (a Windows freeware program)
http://audio.newfreeware.com/
programs/1284/
Ctrl+P and Ctrl+N to move through, + or - to zoom.
I couldn't get some of the other options to work, but that may be just my own
fault.
anon[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 08:23 AM EDT |
| Another one that I hope PJ will pick up on
http
://www.cbronline.com/latestnews/0e403214a3ec733a80256d7c0018cf5d
This explains why SCO says they ignored Novell's 2 letters (last 3
paragraphs)
anon[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 08:47 AM EDT |
| Stowell, Stowell, Stowell .... "I don't think that the GPL can force us not to
collect license fees from someone who may be using our intellectual property,"
You want to collect money from people who "may be" using your "IP" ?
I'd like to collect money from people who "may be" breathing but dat ain't
likely ta hapn, now is't?
Sanjeev[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 09:10 AM EDT |
Hmmmm, maybe SCO is on to something. If I patent the "if .. then" construct,
then y'all owe me.
Sorrel Jakins[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 09:21 AM EDT |
An interesting side note on software patents one of the first, if not
the first, ones was issued to Dennis Ritchie of Bell Labs for the
"sticky bit"...
D.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 10:01 AM EDT |
| PJ, I hope Darl does not read your page at all. I think they'll come up with
one more trick -
"we never really read the GPL, and when we did read it we never understood it,
so we can't be held accountable for putting anything under GPL."
"this is in addition to and beside our previous assertion that we didn't
knowingly put what we were putting under GPL under GPL (which we had not read
and didn't understand to begin with, see above)"
Keystone Kops, Indeed.
Sanjeev[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 10:04 AM EDT |
| Ignorance is no defense.
Or so I've been told, anyway....
Cambo[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 10:26 AM EDT |
Another great McBride quote
http://www.crn.com/sections/BreakingNews/dailyarchives.asp?ArticleID=43802
quatermass[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 10:31 AM EDT |
| At least Red Hat doesn't run away from its responsibility: (Cnet interview)
Q: At a minimum, it seems it's impracticable for every potential
customer to go through every line of Linux code and make sure it's free of
intellectual property problems. Sounds like it would be a tall order for them to
assume that burden.
Matthew Szulik: That's part of our responsibility. But as it relates
to indemnification, there was a time when it was about competition for technical
superiority. It's somewhat disappointing that the argument has now moved and
those companies with 700 Ph.D.s on the payroll…have moved the argument to one
where it's about the legal implementation of a product.
Hey, these CEO's of the Linux companies are very sensible people ;)
MathFox[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 10:39 AM EDT |
| Late to the party, but I wanted to say something anyway.
Cambo is right, ignorance is no defense. Furthermore, if SCO were to use the
argument that they were ignorant of the GPL and therefore should not be subject
to its terms *and* succeed, the precedent would seriously affect most
"shrink-wrap" licenses (i.e. "it's invalid, since I didn't happen to read it
before I used the product, therefore I'm not subject to its terms"). Poppycock,
I say.
RoQ[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 10:49 AM EDT |
| RoQ: It would also make things interesting with regard to the M$ EULA....
style="height: 2px; width: 20%; margin-left: 0px; margin-right: auto;">Cambo [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 11:36 AM EDT |
| So Groklaw readers,
If you had to give a one or two sentence answer to someone who was thinking
about freezing new linux acquisitions because of this SCO stuff, what would it
be?
r.a.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 11:43 AM EDT |
My answer might be:
A failing company has decided to try a licensing scam as its last ditch effort
and this one chose Linux as the target. They've shown just as much evidence
that Solaris and Windows infringe their copyrights as they have Linux, which is
zero, and the next failing company may choose any other OS.
r.a.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 11:45 AM EDT |
two words: "consult counsel"
D.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 12:09 PM EDT |
| D:
"Consult Counsel?" Wow. If a supporter of Microsoft products was asked an
analogous question he or she would definitely not give that answer.
You may well be OS neutral which is not a bad thing at all, but if supporters of
some operating systems are saying buy our OS and supporters of Linux are saying
consult a lawyer then SCO has succeeded in turning FUD into a real competitive
advantage.
I would consider that a shame.
r.a.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 12:11 PM EDT |
Hey, Ralph Yarro is quoted in a fresh news about Novell's business
http://www.trib.co
m/AP/wire_detail.php?wire_num=120923
anon[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 12:18 PM EDT |
r.a.: this was not about buy our product or theirs. this was about invite SCO to
sue you or not.
Robvarga[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 12:35 PM EDT |
| Actually, I am an OS developer and user. Have not used proprierty software
nearly 20 years. But in this case with SCO/G threatening end users with law
suits if they do not bow down to extortion, my recommendation is to check with
councel for anybody who is concerned about using GNU/Linux.
My pragmatic reaction: "The SCO Group nee Caldera, is a failing buisness and
has
been blowing hot air in attempt scare end users. Feel free to employ any F/LOSS
that you wish."
D.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 12:36 PM EDT |
| "If you had to give a one or two sentence answer to someone who was thinking
about freezing new linux acquisitions because of this SCO stuff, what would it
be?
r.a."
I think the Wired Headline summed up the current state of affairs quite nicely:
"Big Blue Sees Red Wants Green".
Harlan[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 12:44 PM EDT |
| This site has been a real breath of fresh air. Thanks for all your work.
Small correction - the word is "cavalry."
Bill[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 12:46 PM EDT |
| r.a.
How about this for a three sentence answer:
"Are you also considering freezing a Windows SQL server rollout because of the
Timeline patents? Timeline has won round one in court and may sue you if you
do. In terms of what has been proven in court, and what is likely to be proven,
you are on shakier ground with the Windows SQL rollout than you are a linux
rollout."
A longer answer would be that we are seeing a lot of pent up issues with IP laws
explode this year. The safest place to be is GPL protected.
Regarding "ignorance is no defense" and the issue of shrink wrap licenses.
Ignorance is not a defense for a contract you have consummated. Downloading
software with GPL written all over it, then using that software, or further
distributing it, consummates the deal. You had ample opprotunity to read the
GPL and chose not to.
Buying software in a box with a license tucked inside of it, where you can't see
it, coming home, then opening the box is different because as of the time money
changed hands (at the store, before you had opened the box), when the deal was
consummated, the merchant had not presented you with an opprotunity to review
the license. Hence, the terms that both sides are bound by have to default to
what the common understanding soceity has of what it means to buy software in a
box at a store. Which is why such hidden licenses may yet be thrown out.
Chris Marshall[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 12:57 PM EDT |
| "If our IP [intellectual property] is being found in Linux and that's being done
without our say..."
Bzzt. Even assuming that that was the case originally, the moment they saw the
problem, the ball was in their court. Where IP is concerned, the GPL explicitly
prohibits saying one thing to your customers and something else to the rest of
the world. The moment SCO said, "You can keep downloading and using our Linux
in spite of its having our IP in it" to their customers, they said it to the
entire world.
Nathan Barclay[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 01:06 PM EDT |
| Oh well, SCO shares went down 2.81%
http://xt1.finance.scd.yahoo.co
m/q?s=SCOX
IBM only lost 0.07%
http://xt1.finance.scd.yahoo.com
/q?s=IBM
Cambo[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 01:44 PM EDT |
| Robvarga:
I do see your point. I don't perceive not freezing linux acquisitions as an
invitation to be sued, except in the sense that anyone can be sued by anyone.
I'm not a lawyer and I don't present myself as one, but if you show me two
same-size organization, one using a proprietary OS and the other using Linux and
ask me which is more likely to be sued this year over their OS, given what I've
seen in SCO's behavior it's impossible for me to say the Linux organization is
more likely to be sued.
I could be wrong. But I could be wrong in either direction.
r.a.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 01:47 PM EDT |
| >>> Cambo is right, ignorance is no defense. Furthermore, if SCO we
My post was tongue in cheek. AND I did not mean they could claim ignorance, I
was suggesting they would claim incomptence or nincumpoop-etence.
(Which come to think of it they already have, with the pregnant-cow defence.
"we didn't know what was in our product" is incompetence.)
PS - Does anyone know what legal theory they're using to support the 'we did not
knowingly contribute" argument? Perhaps the theory that the CEO and board of
directors needs to review and sign off on every line of code contributed by
each and every employee?
Sanjeev[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 01:57 PM EDT |
| I agree with Harlan.
The two differences between Timeline and SCO are 1) that Timeline has shown its
case to a judge who has seen both sides ruled that Timeline is right while SCO
won't allow anyone at all to see both sides and 2) that Timeline isn't making
unsupported statements with the express intention of scaring people away from
Windows.
People who routinely ask for legal advice when choosing an OS should continue to
do so. But unsupported allegations certainly don't make it my job as a
non-lawyer to send people who otherwise wouldn't go to a lawyer. Timelines
supported allegations don't have Windows proponents sending people to
lawyers.
r.a.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 02:01 PM EDT |
| Aduva's Tool Searches And Replaces SCO Code Aug. 8, 2003
The Linux developer's offering lets companies replace Linux code with code that
doesn't infringe on what SCO Group says is its intellectual property.
By TechWeb News
Linux developer Aduva released a tool at LinuxWorld this week that will let
companies looking over their shoulder for lawyers replace offending Linux code
with code that doesn't infringe on what SCO Group alleges is a violation of its
intellectual-property rights.
The battle between SCO and the rest of the Linux community--particularly IBM,
which on Thursday countersued SCO--has made companies nervous about whether
they'll be the target of SCO's lawsuits. Already this year, SCO has mailed
letters to more than 1,000 companies worldwide, threatening legal action if they
continue to use Linux, and announced a licensing arrangement to avoid such legal
action.
In the event that SCO prevails in the courts, Aduva's OnStage, which the company
unveiled Wednesday in San Francisco, could be used by IT staffs to sniff servers
for the Linux code determined to be in violation--and then, from one console,
install non-proprietary, community-developed replacement code.
OnStage 2.0 is available immediately; it runs on Red Hat and SuSE
implementations of Linux.
http://www.informationweek.com/story/showArticle.jhtml?articleID=13000458sn[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 02:22 PM EDT |
Amazing, DiDio's at it again!!!
Plus some exciting new legal threats against Linux users by Stowell.
http://www.technewswor
ld.com/perl/story/31301.html
anon[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 04:19 PM EDT |
Here is a copy to IBM's counterclaim:
http://lwn.net/Articles/43592/
D.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 05:13 PM EDT |
Re: OnStage
Some people will take advantage of any situation. Judging by the description in
the link all this program is is a front end for something like Larry Wall's
patch or RedHats rpm. It can install a "fixed" version of some relevant files if
and when those "fixed" versions are ever released in just the same way as any
other available updates. I've heard that if you want a nice user friendly front
end to do that then Ximian Red Carpet is worth a try - that way you are at least
supporting people who are on our side in this battle.
Adam Baker[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 06:31 PM EDT |
| Aduva has a tool that will "intelligently" search out SCO code and replace it
with
non-SCO code??
Excuse me??
First, does Aduva know something the rest of us don't? Do they know (a) a way to
identify
the offending code (if any), and (b) where to get ready-made replacement code
that will
drop right in and replace the missing functionality of the ripped-out code??
Excuse me if I'm just a little skeptical.
Steve
Martin[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 06:40 PM EDT |
The more I hear the tired old "IBM won't indemnify users" chorus from DiDio, the
more
I want to shake her and make her shut up. As already pointed out, neither does
SCO,
nor Microsoft, nor any other software vendor. Enough already.
Steve Martin[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 06:45 PM EDT |
| Well, there's a huge typo in the title I see. I was up til the wee hours trying
to get the story up for you,
and as you see, I goofed. Thanks for catching it. But if I fix it now, all
your comments may disappear.
It's a Radio thing. So I guess it's more important to keep the comments up than
to try to look perfect myself,
especially after an entire day has gone by and thousands of people have already
seen my goof. I still haven't
had a minute to do more than glance through, and I want to try to get to that
eventually.
D. and Harlan: If, by any chance you would like to work on an article on the
BSDi case, contact me
by email. What you two wrote was very, very interesting.
pj[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, August 08 2003 @ 07:17 PM EDT |
| Does Microsoft indemnify users against patent violation against the lost
Timeline Inc?
In comparing the Microsoft EULA to the GPL, Microsoft's EULAs are pretty uniform
when it come to exluding themselves from liability...
http://
www.cyber.com.au/cyber/about/comparing_the_gpl_to_eula.pdf
QUOTE
ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET
POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE
PRODUCT.
Analysis
....
Also, Microsoft disclaims that this software will not infringe on the
intellectual property rights of others. This is a potentially serious issue, as
has been recently shown through the legal dispute between Timeline Inc. and
Microsoft. Timeline has won a recent ruling which exposes all Microsoft SQL
Server developers to a serious patent encumbrance.
UNQUOTE
The Timeline Inc case bring up an important issue; while no vendor can expected
to identify all potential patent violation when developing software, when the
vendor does purchase and license technology from a third party, the vendor
should insure that the end user/develop is not put at further risk.
Even Microsoft's May 27th changes which apply only to customers under enterprise
licensing contracts, which Microsoft claims grants greater immunity, contains
loop holes which greatly negate Microsoft's liability.
https://
www.microsoft.com/licensing/programs/contractupdates.asp
https://www.microso
ft.com/licensing/downloads/mba.doc
The new section 6 clause contain exceptions
QUOTE
Our obligations will not apply to the extent that the claim or adverse final
judgment is based on (i) specifications you provide to us for the service
deliverables; (ii) code or materials provided by you as part of service
deliverables; (iii) your running of the product, fix or service deliverables
after we notify you to discontinue running due to such a claim; (iv) your
combining the product, fix or service deliverables with a non-Microsoft product,
data or business process; (v) damages attributable to the value of the use of a
non-Microsoft product, data or business process; (vi) your altering the product,
fix or service deliverables; (vii) your distribution of the product, fix or
services deliverable to, or its
use for the benefit of, any third party; (viii) your use of our trademark(s)
without express written consent to do so; or (ix) for any trade secret claim,
your acquiring a trade secret (a) through improper means; (b) under
circumstances giving rise to a duty to maintain its secrecy or limit its use; or
(c) from a person (other than us or our affiliates) who owed to the party
asserting the claim a duty to maintain the secrecy or limit the use of the trade
secret. You will reimburse us for any costs or damages that result from
these actions.
UNQUOTE
Loophole #1
"(ii) code or materials provided by you as part of service deliverables"
This would effectively still indemnify Microsoft against most of the Timeline
Inc patent claims, as it is the developer/end user's code ( even visual basic
code ) which would be in violation of Timeline's patent claims.
Microsoft has a history of licensing third party code and patents in such a
manner that still leaves developers and users exposed to IP threats. Even going
back to the LZH/GIF Unisys patents,
http://www.unisys.com/about__uni
sys/lzw/
QUOTE
"Microsoft Corporation obtained a license under the above Unisys LZW patents in
September, 1996. Microsoft's license does NOT extend to software developers or
third parties who use Microsoft toolkit, language, development or operating
system products to provide GIF read/write and/or any other LZW capabilities in
their own products(e.g., by way of DLLs and APIs)."
UNQUOTE
Microsoft also licensed database technology for Microsoft's SQL server from
Timeline Inc, under similar license terms as did with Unisys. This license did
not grant Microsoft the right to sublicense to third party developers to extend
functionality, in some cases even restricting the use of visual basic. Unlike
companies like Oracle Corporation and others, Microsoft chose a cheaper option
for the license which left third party developers, users of Microsoft SQL
Server,Office and other Microsoft products at risk of being sued by Timeline Inc
for violation of Timeline Inc patents. Timeline Inc asked Microsoft to upgrade
to a similar license used by Oracle, but Microsoft refused, so the whole issue
went to court and in 2002, Timeline Inc won.
http://www.timeline.com/021903PR.htm
http://www.theregister
.co.uk/content/53/29419.html
How many other cases exist where Microsoft has included third party technology
in it products, but has also taken the cheaper licensing option and left
developers and even users exposed to the threat of lawsuit? Due to the closed
nature of the proprietary business model, how can third party developers even
check?
David Mohring[ Reply to This | # ]
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| Authored by: Anonymous on Friday, August 08 2003 @ 07:22 PM EDT |
With respect to the purchase of SCO Linux licenses, as long as you stack-um
near
the crapper and don't include same with any distro, you'll be OK!
PhilTR[ Reply to This | # ]
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| Authored by: Anonymous on Friday, August 08 2003 @ 07:49 PM EDT |
This thought has been in the back of my mind for a while, it just wasn't too
clear. At http://lamlaw.com/ (web page for the
law office of Lewis A. Mettler), there are some interesting comments made about
the amount that Microsoft paid SCO for their Unix license. Anyone concerned
with the present situation concerning Linux should take a look at it. Did
Microsoft really need to pay SCO $70 million or so for a Unix license from SCO
or is that money being used by SCO for other purposes (i.e. fud)? Has anyone
else been thinking along these lines? Anyway, I thought the analysis that Mr.
Mettler presents hits very close to the mark, if not an outright bullseye. BTW,
pj, your site is outstanding.
Thanks for all your hard work.
Barry[ Reply to This | # ]
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| Authored by: Anonymous on Friday, August 08 2003 @ 08:16 PM EDT |
| Something that's been bugging me for a while - didn't someone at SCO say they
administered licensing for UNIX on behalf of Novell? In which case, Novell ought
to be getting a chunk of the money that M$ paid, shouldn't they? Or has this
changed with some of the more recent activities?
Sorry, I just woke up at 4am, and this thought just won't go away!
Cambo[ Reply to This | # ]
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| Authored by: Anonymous on Friday, August 08 2003 @ 08:19 PM EDT |
I think $70m is a tad high. The figures I saw were $7m and $8m.
PhilTR[ Reply to This | # ]
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| Authored by: Anonymous on Friday, August 08 2003 @ 08:21 PM EDT |
| Cambo, I saw same info too. Not sure where tho. But it was about three weeks
ago, as near
as I can remember.
PhilTR[ Reply to This | # ]
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| Authored by: Anonymous on Friday, August 08 2003 @ 08:45 PM EDT |
If so, that'll put a bit of a dent in SCO's war chest! And Novell must love the
idea of getting money out of M$!!!!
Cambo[ Reply to This | # ]
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| Authored by: Anonymous on Friday, August 08 2003 @ 09:49 PM EDT |
| PJ: Pardon the mess the Caldera International/SCO Group trademark mess is still
under construction.
If you go to either http://www.sco.com/company/legal/#9 or http://www.caldera.com/company/lega
l/
you will find a section that says in part:
"Restricted Rights Legend
When licensed to a U.S., State, or Local Government, all Software produced by
Caldera is commercial computer software as defined in FAR 12.212, and has been
developed exclusively at private expense."
As you can well imagine, that news ought to come as a complete surprise to DARPA
and the Regents out in California. They spent so many years, and so many of the
taxpayer's dollars developing the Berkeley Software Distributions after all.
They might even feel that statement is materially false if anyone would just
stop and think about for a moment. Almost everyone's branded Unix makes this
claim. It's all a legal fiction that we have come to accept bit by bit.
In 1988 AT&T purchased 20 percent ownership in Sun Microsystems. SunOS was
based on BSD, because Bill Joy was both a Sun Microsystems and BSD project
co-founder. AT&T and Sun signed an agreement to merge the two branches of Unix
incorporating the features of both System V, Release 3 and BSD4.3. This was Unix
System V release 4. This is exactly the same code that SCO just registered at
the US Copyright Office. It is also some of the same code that SCO claims the
Linux kernel infringes. SCO is claiming a right to license the government's use
of Linux based on Unix System VR4. For example, they have stated that the
infringing code has nothing to do with BSD code, or the IBM case. If you accept
those two arguments at face value it means the government can act now without
regard to the outcome of the SCO V IBM case, or the sealed BSD settlement. Going
further, even if you accept those arguments, it doesn't eliminate the problem
that Unix System VR4 contains code that was developed for hire by DARPA and a
California State entity (the only unsettled matter is if some copyright notices
were removed so that a new copyright could be registered fraudulently).
That FAR 12.212 part just means the government doesn't get to see the source and
what not, because this is an off-the-shelf commercial product.
that is not an insurmountable problem since SCO has volunteered to let the
government see the code:
http
://www.washingtontechnology.com/news/1_1/daily_news/21384-1.html
Blake Stowell, director of corporate communications for SCO said that the IBM
suit is unrelated to the present licensing initiative. Although some of the
overlapping code comes from IBM, there are other parts of the code that leaked
into Linux from other sources, Stowell said.
"We'll be happy to show [agencies] proof, providing they sign a nondisclosure
agreement," Stowell said.
I'm busy digesting some recent changes to the FAR that are outlined here: http://www.nbnn.com/22_17/
manager/22637-1.html
Then I plan on emailing it all to fraudnet@gao.gov and the usual outrage of the
day letter to my Congressional representatives.
Harlan[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, August 09 2003 @ 05:27 AM EDT |
| Barry and PhilTR:
Robert Cringely, at least a moderately respectable journalist, claims the amount
paid for the license was $6 million. And he quotes an unnamed Microsoft source
as saying "SCO needed money for their lawsuit problem"
http://www.
infoworld.com/article/03/08/08/31OPcringely_1.html
For now it's just an unnamed source. If someone can get evidence it becomes
devastating to MS and to SCO.
r.a.[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, August 24 2003 @ 05:15 PM EDT |
| It's worth noting that the claims of unfair trade practices, trade libel,
disparagement, stock manipulation, etc., alleged by IBM in its counterclaims,
are mostly claims which can normally be put in lawsuits against the
*individuals* who made the false statements, regardless of whether the
'corporate veil' can be pierced. (The statements were made by individuals, not
just 'by the company'. This is as opposed to the patent infrigement, contract
violation, and GPL violation claims.) If SCO doesn't have enough assets to pay
the damages, the individuals who made the statements (Darl McBride, etc.) can
presumably all be sued personally, and must pay damages until *they* go
bankrupt. IBM hasn't named them as defendants yet, but it can any time it
likes. I personally think they should, as personal liability is likely to be
the only thing which will actually scare these yahoos.
(This Is Not Legal Advice. I Am Not A Lawyer.)
Nathanael
Nerode[ Reply to This | # ]
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