Now all I am hoping for is that the DOJ, FBI, SEC, ITC, and others will descend on SCO and administer a serious bitch-slapping.

What is needed is an immediate cease and desist order against SCO, temporary and permanent injunctions, and a final judgement invalidating all of their copyrights and "intellectual property" - boy, that's an oxymoron - and declaring them voided and perpetually unenforceable.

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http://www.theinquirer.net/?art icle=10972

I haven't yet seen anything at theinquirer.net about Old SCO's involvement with Linux.

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The Lord bless IBM, Red Hat, and all who oppose SCO, that they may collude to destroy SCO, with extreme prejudice, that neither SCO nor any of SCO's collaborators will escape the wrath of justice. Amen!

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Not sure if this was mentioned, Caldera also publicly released all ancient Unix (1-7) source under BSD style license, just last year:

http://www.lemis.com/grog/UNIX/ http://www.lemis.co m/grog/UNIX/ancient-source-all.pdf

From http://www.lemis.com/grog/sco.html (Greg Lehey's site)

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http://www.linuxjournal. com/article.php?sid=6956

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Is that right ?

My question is, did IBM get the full rights on the codes that was put in AIX during the monterey project ? If not, then SCO could claim that they did'nt knew they were distributing a linux version that contained code that belonged to them. And the GPL could be declared void because of that. And then, IBM action would be the equivalent of a steal.

Do I have forgot something that would invalidate my resoning ? I hope so.

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You're a perfect example of Open Source Legal principles - given enough eyeballs, all lawsuits are shallow.

I want to have your baby.

Alex

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PJ is the Erin Brockovich of the Open Source community.

Thanks a billion, PJ (or is that 3 billion)?

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Doesn't matter whether they knew or not. A judge will assume they are competent (a leap of faith, I know) and that when they used/copied/modified/distributed Linux that they knew what was in it (since anyone can look and obviously they have ala the lawsuit) and that they knew what they were doing when they did.

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1) They have to prove that there is code in linux that originated in sco. Given how reluctant they have been to let people see time and date tags, it is rather dubious this is the case.

2) With all the code that sco has publically contributed to Linux, they have to further prove that at least a good chunk of the alleged sco-original code in Linux didn't get there by that route.

3) Eban Moglan and other say that when sco distributed Linux under the GPL, they gave title of all code over to it, so they have to prove that is not the case.

If sco doesn't prove all three points, they are totally screwed because they no longer own any code at dispute. However, if they prove all three, they are still not home free.

4) Eban Moglan says you can't sue people who buy the New York Times and read plaguarized material in it, and you can't similarly can't sue Linux users. SCO has to somehow disprove this.

5) They have to prove it is legally acceptable to keep the distributions from finding out what code sco claims they stole, so that the distributions can't remove it and are forced to keep illegally publishing it.

What do you think are the odds they can persuade a court of all these points? I think it is about zero. Now add in the damages filed against them and IBM's patent claims, and they are in very deep trouble.

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Anything to bump their stock back up.

I think it's about time the FTC, DOJ, and FBI stepped in.

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Anyone know how long it will take before IBM will get a hearing? Is this the sort of thing that those of us local could come watch?

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They have to prove that as a Unix company with 'trade secrets' sub-licensed to many companies with Linux strategies, and with their own Linux strategy (and therefore a number of engineers actively involved and watching the completely public and open development of the Linux kernel) didn't notice key pieces of their code being added.

There seems to be two possibilties: they (Old SCO) noticed, didn't mind and tacitly approved. They didn't notice, none of them, not even the engineers actively involved- because if they had surely they would had stepped up, tapped on someones shoulder and said 'I don't think you can add that.'

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You guys are a riot. You, too, MathFox. Again, there is no way to know who bought this license, if anyone did, because of a confidentiality agreement. I bet Judge Kimball gets to know, though.

Major, since you are new, I hope you don't mind if I ask you to please carefully refrain from remarks that might be viewed as defamatory or suggestions to take any legal actions. Other than that, enjoy.

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Thanks for the tip.

Groklaw is really a community project now. I appreciate all the compliments, but the truth is, we're doing this together.

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There is somethign going on, I expect more insider sales soon after the upswing, like rats leaving a sinking ship. If they can prosecute Martha Stewart for taking a phone call and saying go ahead this should be a snap.

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http ://finance.yahoo.com/q?s=SCOX&d=c&k=c1&a=v&p=s&t=1d&l=on&z=m&q=l

Notice the time of the latest press release, as compared to the graph of stock price.

What an amazingly lucky coincidence for SCOX!!

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Broughton sold some a few days ago http://www.sec.gov/Archives/edgar/data/1102542/0001102542030 00045/xslF345X02/primary_doc.xml

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SCO is expected to announce 32- and 64-bit versions of Linux for Intel-based servers, which will be available in the fourth quarter of this year. In early 2001, SCO plans to deliver a 32-bit Internet Infrastructure Edition that will come bundled with a Web server and other IP applications. The company is also working on a 64-bit edition for service providers, including ISPs and application service providers, which will feature special billing and management tools."

Of course we really should know the details of (old)SCO's agreements with Caldera, Tarantella and Project Montere. You'll notice in Agreement X (Exibit D) SCO only gives royalty relief to Software Products and Sublicensed Products (i.e., AIX).

It says:

For a period of five years from January 1, 1996, the royalty relief described in Secion 1 of the Amendment No. X shall apply only to use or dstribution of the Software Products and Sublicensed Products in the IBM operating system referred to currently as AIX on the Power or Power PC or Power2 architectures or derivative or follow-on architectures-irrespective ofthe name of such versions. During such five year period, any IBM distribution of Software Products or Sublicensed Products not covered by the preceding sentence, shall be calculated at the aggregate discount percentage (80% in the case of Sublicensed Products) in effect at the time of execution of this Amendment No. X. After such five year period, the royalty relief dsctribed in Section 1 of this Amendment No. X shall apply to any authorized use of disctribution of the Software Produces of Sublicensed Products. (emphasis mine)

This seems to provide IBM's AIX code, for the five year period starting January 1, 1996 and ending December 31, 2001, from "royalty relief" only. No copyright relief or patent relief is mentioned. The wording seems to tangle IBM's AIX up with SCO's Software Product for copyright and patent purposes.

Of course other SCO code not used in the development of AIX requires an either an aggregate discount percentage or 80% in the case of Sublicensed Products.

Clearly SCO is claiming IBM's AIX code as a derivative of the Software Product. Presumably this is IBM's understanding too.

The nut here is just what kind of understanding did (old)SCO have with Caldera, Tarantella and Project Montere? If they were as restrictive as the agreement (old)SCO had with IBM it could prove problematic. Unless there was a clear understanding that code (the Software Product) could be shared with these entities without restriction and that these entities could publish this code without encumberences SCO may have a case.

The last sentenc in Section 6 of Amendment No. X states:

"The second to last sentence of paragraph 9 of the February 1, 1985 amendment to SOFT-00015 is modified by deleting the words: "and employees of Licensee shall not refer to the physical documents and materials comprising Software Products subject to this Agreement when they are develooping any such products or services or providing any such service." " (emphasis mine)

This clearly gives IBM permission to let its employees see (old)SCO's code while developing their products.

Not only that but in Section 3.06 of Agreement No. SOFT-1538( the SCO reference socure code agreement) it states:

Notwithstanding anything to the contrary, , YOU shall have the right to use residual information mentally retained by YOUR employees who in the ordinary course of their work persuant to theis Agreement, retain such information In non-tangible form after having access to REFERENCE SOFTWARE PRODUCT, provided that such employees make no deliberate attempt to preserve such information by reducing it to writing or to otherwise memorialize such information contemporaneously. (emphasis mine)

If an employee has a good memory and they can remember what they saw, it would seem that they could use what they remembered. No harm, no foul.

SCO's public statements, although pretty inflamatory, could be claimed as being only so much market hype, the real deal being the signed letters of intent between (old)SCO and the entities.

Now would be a good time for Caldera, Tarantella and Project Montere to fess-up. Of course this won't likely happen as these agreements could be what makes or breaks SCO's case.

Enough of my ramblings.

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If SCO Group failed to do its homework befor making the purchase, that should be *their problem*. I would imagine Novell would have more standing than anyone else when it comes to copyrigh infringment as it could be argued that SCO Group bought a tainted product.

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I don't know if it'll do any good but I felt there was enough suspicious goings-on to warrant an investigation by both government agencies.

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Alex

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http://www.sec.gov/Archives/edgar/data/1102542/0001102542030000 47/xslF345X02/edgardoc.xml

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I know there is no way that SCO would agree to this but it would force them to put up or shut up very quickly.

Additionally, I am wondering why SCO's parent (Canopy Group) and the major stockholders are not being named on these suits as well. Per your post of 7/28 the “Alter Ego” theory may very well apply here (it is certainly worth raising in court). Broadening the suits to include Canopy etc would, in my opinion, help to speed the process along.

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http://biz.yahoo.com/prn ews/030811/lam083_1.html

"Terms of the deal and the Fortune 500 company name were not disclosed based on confidentiality provisions of the agreement"

I can't help think, SCO is now selling licenses under undisclosed terms, to undisclosed terms, based on undisclosed alleged code infringements.

I have to admit, I was surprised that a fortune 500 company would paid up so quickly, given SCO said they had till October 15.

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I can't help think, SCO is now selling licenses under undisclosed terms, to undisclosed customers, based on undisclosed alleged code infringements.

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http://www. infoworld.com/article/03/08/11/HNscolicense_1.html

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http://www.computerworld.com/softwaretopics/os/linux/sto ry/0,10801,83847,00.html?SKC=linux-83847

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http://news.com.com/2100-101 6_3-5062396.html

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I can't help think, SCO is now selling licenses under undisclosed terms, to undisclosed terms, based on undisclosed alleged code infringements.

I have to admit, I was surprised that a fortune 500 company would paid up so quickly, given SCO said they had till October 15./

I think that a strong case can be made to force SCO to release info on who bought the license. The licensee is now in violation of the GPL and SCO has a legal obligation to inform the other kernel copyright holders of who it is so that they can revoke the licensee's use of linux. All that is needed is for one kernel contributor to go to a judge, show that they hold the copyright on a section of linux, show how the GPL forbids the use of linux with a license, then get a writ on SCO to divulge the identity of the licensee so that the copyright holder can enforce his legal rights.

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http://news.com.com/2100-101 6_3-5062396.html

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Thanks for the links, very interesting reading indeed...

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1) SCO have sued IBM for putting components of AIX into Linux There are many documents describing the relationship between IBM and all of the former UNIX owners many of which have not been made public. The most publicised items have been JFS, NUMA, RCU and SMP capabilities but SCO actually list several more in their complaint including "other scheduler improvements". It looks as though these are all things IBM has added to SVRx to form AIX and do not include any of the original SVRx code. A quick look at the Linux Kernel Mailing List certainly reveals that IBM staff have been contributing to areas like the schedulaer as well their well publicised donations of large code chunks such as JFS but none of this seems to fit the widely accepted definition of a derivative work so unless there is something in the various contracts that we have not seen this would appear to be above board

2) SCO have claimed that other parties have contributed UNIX code to Linux and have organised various code viewings usually subject to NDA but at one such event in Germany the lawyers forgot to ask some of the participants to sign the NDA (http://forum.gol em.de/phorum/read.php?f=44&i=1774&t=1716 look down a bit for a translation). We therefore have a clue that not everyone has been shown the same bits of code, comments that the code that was shown was not in the main kernel.org distribution but either some vendor specific version or mailing list emails, information that the scheduler is one of the areas shown and a clue that SGI may be the vendor that leaked some of this. SCO have stated the code shown at these events didn't come from IBM. No evidence has been presented in either case to show that the code really is in SVRx, in fact everything possible has been done to ensure that cannot be verified. The factthat they have not been prepared to say openly what they are claiming is an infringment has led many people to SUGGEST that they have not effectively given notice to users that their IP is being infringed so cannot claim damages

3) Some jurisdictions have placed restraining orders on SCO In some parts of Germany court orders obtained by Tarent and LunuxTag, possibly assisted by Suse have made it illegal for SCO to continue making their claims. They had the option of presenting their evidence to the court or receiving an injunction and chose the latter. The same may have happened in Poland

4) Red Hat has sued SCO Either Red Hat were hoping that this case could be heard before the IBM case or this is just a sop to those customers who were saying why isn't Red Hat doing anything. It seems unlikely there will be anything left of SCO for Red Hat to sue if IBM win and Red Hat will have a difficult but probably not impossible case if IBM lose. Anyone else who tries to sue SCO now will probably be after both IBM and RedHat so is even less likely to get any benefit from doing so.

5) IBM have counter sued SCO The interesting bits of this are that IBM are claiming SCO are infringing the GPL which appears to be undeniable as they are still offering their Linux distribution for download but saying the GPL license doesn't apply to all of it. There are also some patent infringment claims which appear to be included just to demonstrate what a formidable foe the IBM patent portfolio is. IBM don't yet appear to have applied for a preliminary injunction to stop SCO shipping products that infringe those patents, possibly they need to show that SCO have ignored this claim first. If IBM can obtain such an injunction this would stop SCOs primary revenue stream and it is possible they wouldn't even be able to afford their legal fees to keep going until the trial.

6) SCO have offered some license agreements They claim that these licenses allow you to run Linux legally but that seems unlikely. Either an end user does not need a license at all (if your country's copyright laws determine that the act of installing a program doesn't constitute making a copy) or the license contravenes the GPL in which case you can't use any of the non infringing bits. In any case the license is a binary only license so is unsuitable for anyone who needs the ability to customize the kernel which I suspect most large users do. They are also offering a license for embedded systems which is interesting for 2 reasons - firstly because embedded systems will generally use a very stripped down kernel version so may have removed all of the code SCO lay claim to and secondly they are unclear as to whether it is marketed to OEMs (who would clearly be in violation of the GPL if they accepted it) or to end users. IANAL but I would strongly advise anyone considering buying such a license to consult a lawyer and make sure they ask i) Am I increasing my liability if I buy such a license because the audit provisions may turn up something like a TiVo that I didn't even know was running Linux and having accepted the license I have accepted that I believe SCOs IP is infringed so need a license for every copy of Linux. ii) Are SCO obliged to repay my license cost (+ interest) if their case fails and will they have the money to do that. iii) Does the license actually give me any rights that I don't already have. iv) Will I need a new license for Linux 2.6

Finally, a lot of people have suggested that SCO are more interested in trying this case in the court of public opinion than in a court of law. I suspect they are most interested in trying it on the NASDAQ and therefore welcome today's decline in their share price.

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"I explained that I had several linux systems, and that I understood there were some intellectual property issues, so I wanted to be sure to be covered.

The helpful and polite lady on the phone told me that the license program had been "suspended until further notice". She said she was pretty sure it had to do with the lawsuit."

http://slashdot.org /comments.pl?sid=74394&cid=6670704

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If I recall SCO Group's public stements correctly, they intend to try to collect the fee from the OEM's for embedded linux.

In the thread about PJ's article on the license there is a link to reportage of SCO's intentions regarding the license.

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Food for thought.

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According to mozillaquest (but mainly they link to outside articles)

1. SCO agrees IBM own copyrights on (at least) some of the code in question: http://www.mozillaquest.com/Linux03/ScoSource-24-Copyrights_Story01.html

I've not seen anything to indicate that SCO have changed their position on this.

2. Where, according to SCO, in Linux is the "infringing" code in question?

It's not at all clear to me (is it changing??) - nor is it clear to me what code they were claiming to have reviewed at each point in time

April 24/25 http://www. mozillaquest.com/Linux03/ScoSource-10_Story02.html http://www. mozillaquest.com/Linux03/ScoSource-13_Story01.html Chris Sontag: We're not talking about the Linux kernel that Linus and others have helped develop. We're talking about what's on the periphery of the Linux kernel.

April 29 http://www. mozillaquest.com/Linux03/ScoSource-13_Story02.html Blake Stowell (29 April 2003): What Chris Sontag was saying was that "SCO has not identified any current issues with the code that is in the kernel today.

http://www. mozillaquest.com/Linux03/ScoSource-13_Story03.html 1 May interview with CNET's Stephen Shankland, McBride said "We're finding...cases where there is line-by-line code in the Linux kernel that is matching up to our UnixWare code,"

http://www. mozillaquest.com/Linux03/ScoSource-13_Story03.html 15 May Sontag told Linux Journal's Don Marti that Infringement is present not only in distributions and vendor kernels, but in the official kernel available from kernel.org

21/20 May 2003 http://www. mozillaquest.com/Linux03/ScoSource-13_Story04.html made yesterday by SCO's Blake Stowell: The only thing we have stated is that we have found our SCO owned code in various Linux distributions (including Red Hat), and in the Linux kernel. We have not reviewed the code found on kernel.org or the GNU/Linux operating system.

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One point about SCO Group's of the alleged infraction that the offending code was not in the periphery. I believe that in a follow-up to Mozillaquest, they stated that the code in question was some xlib libraries that were sco specific.

I can believe that at one time (the old) SCO would have had to have written special Xlibs for Xenix, since xenix did not handle video in a way that was common to unix and therefore couldn't use the standard Xlibs from Project Athena. Since I never directly coded for Xenix, I cannot state what the various differences were, but I do recall lots of coders grumbling about the "weirdness" of that system.

Standard disclamer - Xenix was a tradmark of Microsoft and The Santa Cruz Operation. I do not know who owns the trademark rights today.

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First sentence should read "One point about SCO Group's claims that the infraction was not in the kernel, but in the periphery."

Believe me, I write better in C than I do in english.

Also I omitted the final sentence to the Standard Disclaimer "Whoever does own the trademark -- its theirs."

(does anybody know of an FLOSS english language debugger?) (And don't tell me about writers workbench, afaik the Labs never released that version of 'nix.)

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http://www.itworld.com/Man/268 1/030811sco/

WTF were they thinking?

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What the FUD is your point?

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I'm designated an "insider" for the purposes of the SEC trading rules at my company. There are fairly stringent fairly rules in place about blackout periods when I am forbidden to buy or sell my company's shares under any circumstances. I know about them because the accounting folks send me nice little emails warning me when one starts, when it will finish and when the next one will start.

One time period that is always covered by a blackout is the time from the end of a fiscal quarter to the announcement of the quarterly results to the investing public. I would assume that this blackout period applies to other companies, in particular SCO.

Which brings me back to my confusion. SCO's quarter end was July 31 I believe, and their results are due to be published on August 14. So how come two insiders are able to sell shares during this apparant blackout period? They must be insiders or they would not have had to file Form 4 with the SEC.

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Alex

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Paragraph 0:
... Activities other than copying, distribution and modification are not covered by this License; they are outside its scope.

Paragraph 7:
If, as a consequence of a court judgment or allegation of patent infringement or for any other reason [...] 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.

The GPL makes it clear that you are free to refrain from distributing GPLed software. Did I miss something significant in my analysis?

(This is not about SCO's rights under the GPL)

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MS seems to me, given their support of SCO, their cash flow, and their anti Open Source stance, to be a real if potentially too obvious, buyer.

More probable would be any company MS (or their execs) have considerable shares (hence influence) with,so as not to directly implicat MS.

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They think that if an SCO license has been purchased it has no effect at all on the GPL status of Linux until it is established that SCO has rights to any part of that software. Until that point the SCO license cannot be used to restrict the GPL rights of any person who receives the software from an SCO licensee.

However, when a determination is made that SCO does have a valid copyright interest in the Linux kernel the SCO license becomes valid. As a consequence the SCO licensee has to restrict the rights passed to any user who receives code from him. As additional restrictions are not permitted by the GPL, an SCO licensee would therefore be violating the GPL by copying or distributing the code.

The position with regards to modifying the code is more murky, but making kernel modificatons without distributing them it is generally not going to have any great effect.

However, a more insidious effect of purchasing an SCO license is that the licensee implicitly and explicitly accepts that SCO have rights to parts of the Linux kernel. This would establish that SCO can direct the licensee to deal with the SCO copyrighted sources in Linux in any way allowed by the license. And since SCO have not stated which parts of the kernel they may have rights in, they may lay claim at some future time to any part or all of the kernel, which could make life interesting for licensees. And I mean interesting in the sense of the Confucian curse "May you live in interesting times."

<shrugs> Not that any of this matters. SCO are toast anyway, and their licences will be worthless.

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Do the lawyers around you agree with this part too? What is their reasoning if they do?

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Robert X. Cringely wrote an article publshed on June 5th titled "Technician, Steal Thyself SCO, Not IBM, May Have Put Unix Code Into Linux Instead"?

http://www.pbs.org /cringely/pulpit/pulpit20030605.html

Here are some of the highlights of the article:

There is something about institutional memory, the way organizations do or don't remember things...

Where, then, did IBM get those Unix parts it is supposed to have stolen? They certainly didn't come from IBM's version of Unix, AIX, which bears little internal similarity to any other Unix. I think the parts may have come from SCO, itself.

Here is where institutional memory ought to come into play but doesn't seem to be. Remember that the motto of the combined Caldera and SCO was "Unifying Unix with Linux for Business." It is very possible that SCO's Linux team added UnixWare and OpenServer code to Linux. They then sent their Linux developers to SuSE when United Linux was formed. Soon after that, CEO Ransom Love departed. Now the SCO management is scouring the UnixWare, OpenServer and Linux code bases and says that they are finding cut-and-pasted code. Chances are that their former employees put it there.

"Open Unix 8 is the first step in implementing the vision of the pending new company," said Ransom Love, president and CEO of Caldera Systems in a company press release way back when. "It combines the heritage of Unix with the momentum of Linux, and will be our premiere product for data intensive applications like database, email and supply chain management. The incorporation of the Linux application engine into the UnixWare kernel essentially redefines the direction of the product, and motivates a new brand identity -- Open Unix."

But wait, there's more! Here is what Ransom Love said to ZDNet around the same time:s

ZDNet: What does the future hold for your unified Linux/Unix platform?

Love: "When we talk about unifying Unix and Linux, the two have a huge amount in common. A lot of people are running their businesses on Unix, while Linux has a tremendous population on Web servers and other front-end servers. So we are taking both and combining them into one platform."

So SCO/Caldera spent two years "unifying" Unix and Linux and is now outraged to find some of their intellectual property in Linux. Well duh! That's exactly what they said they were going to do.

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If SCO published its claims, I'm sure that every strand of code they'ld mention would be tracked by at least three independent researchers. Given enough eyeballs, the air could be cleared in a week. Problem is that SCO needs the fog and the clouds for its licence plans.

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My point? Well, I just found what Red Hat was doing interesting. I'm not trying to intentionally spread FUD. Is that what I did?

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You seem to have not done your homework on RedHat.

Your out of context cite of a press release is a fine example of FUD tactics.

Have you read their complaint that was filed in Delaware?

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I think maybe I should have made it clear that I was responding to the comment by Adam Baker above that Red Hat's lawsuit may have been "just a sop to those customers who were saying why isn't Red Hat doing anything" (for context, see point (4) in the comment by Adam Baker above posted at 4:52:28 PM). I was trying - not very successfully as it's turned out - to explain why I believed that this wasn't the case. That's all. If my beliefs are naive, ill-informed or just plain wrong, I would appreciate being told so.

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About how old SCO also was working to unify with Linux: So the story SCO wants us to believe is that IBM was stealing vast quantities of SCO and SVRX code and giving them the Linux, and in the meantime SCO had not one, not two, but three teams of employees working on Linux. They were participating in kernel discussions, making bug patches, and even contributing lots of company code, but somehow not one of them ever noticed the huge crates of SCO code being smuggeled into Linux.

It wasn't until SCO's savior, the Great Leader Darl McBride came along that they noticed anything was going wrong. Perhaps in his first week or two on the job he skimmed over the entire codebase for Linux, AIX, SVRX, Unixware, and OpenServer, and noticed some similarities.

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Thanks for clarifying your point. Sometimes it can be difficult to ascertain who is responding (specially when a reference is omitted or overlooked) to what, or when someone is trying to add new information to the matrix...

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