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| SCO's Memo in Opposition to IBM's Motion for Summary Judgment - The Ghost of AdTI |
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Friday, July 09 2004 @ 03:17 PM EDT
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Here is SCO's proposed MEMORANDUM IN OPPOSITION TO DEFENDANT IBM'S MOTION FOR SUMMARY JUDGMENT ON ITS TENTH COUNTERCLAIM FOR DECLARATORY JUDGMENT OF NON-INFRINGEMENT. And while I haven't read it all yet, I read enough to throw up.
The ghost of AdTI appears on page 14, paragraph 9, although SCO has tried, if I may use the term, to obfuscate what they are talking about:
"9. Linux was first created in 1991, when a Finnish college student named Linus Torvalds began developing Linux as a hobby after studying an operating system that one of his professors had based on and derived from UNIX. IBM Statement Paragraph 2; SCO Linux Introduction Version 1.2 Section 1-5 (2002) Exh.S-7" So now we come full circle. Microsoft gives money, as they have publicly acknowledged, to AdTI, the Alexis de Tocqueville Institution. They then do a "study" of Linux and publicly imply that Linus "stole" from Minix. That wrong statement then shows up in SCO's legal document, with the additional allegation that Minix is a "derivative" of UNIX.
If this is the foundation of SCO's case, they are doomed. Happily.
Cf. this and this and this on AdTI's laughable theories.
Meanwhile, IBM has to spend money and time answering this nonsense. At some point, one hopes that somebody asks the real question: does a monopoly get to attack its competition using surrogate plaintiffs and the court system as a weapon?
John Dvorak asks if Microsoft is behind the media barrage of smears on Linux, and he lists the AdTI book as just one example of the new attack FUD: "Could Microsoft be behind a smear campaign aimed at Linux? If not Microsoft, then who? Let's look at the continued attacks against Linux. The media is peppered with them. When one starts to die down, another one crops up. While every single one of these assertions is laughable, the never-ending barrage of anti-Linux propaganda has got to take its toll on potential users. . . .
"One example of creating a new phalanx to support the main thrust is the report that Torvalds did not write Linux and that it's actually a kludge. Here, I believe the main thrust is that Linux is dangerously laced with stolen code, and using it could ruin your company. All the other arguments against Linux have fallen on deaf ears, and this is the main negative message. All the new messages support this theme but never actually mention it.
"You thus get the weird report by the folks at the Alexis de Tocqueville Institution (AdTI) that Torvalds slapped Linux together from old bits and pieces of possibly stolen code. This could be a subtle effort to support the notion that Linux might be illegal to use. Where there's smoke, there's fire. First SCO, then this! . . .
"Microsoft's goal is to make companies take a wait-and-see approach to any decision to use Linux. If that happens, Microsoft wins."
If not Microsoft, then who?
I've similarly gotten the impression that SCO doesn't care if they ultimately lose this case -- they must know they ultimately will -- just so long as they can keep the FUD in the air by these court documents.
I'll write more about this memorandum when I can stand to read the rest. First I have to clear out this bad taste in my mouth.
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| Authored by: seanlynch on Friday, July 09 2004 @ 03:56 PM EDT |
| corrections [ Reply to This | # ]
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| Authored by: jbeadle on Friday, July 09 2004 @ 03:58 PM EDT |
Thanks,
-jb[ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 04:01 PM EDT |
The ridiculous claims about Linux/Minux connections are really immaterial to the
IBM motion
If SCO can't adduce any evidence of copyright infringement in Linux, the Minix
thing immaterial to determining whether there is a copyright infringement.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 04:09 PM EDT |
p9 - they say comparing Linux to Sys V is "impractical" and too
"time-consuming"
Gee I wonder what Darl was talking about most of last year[ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 04:09 PM EDT |
| Not careful readers, are they? [ Reply to This | # ]
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| Authored by: Yobgod on Friday, July 09 2004 @ 04:11 PM EDT |
Well, if nothing else the memos are getting more professional.
I'm rather baffled that they present simply comparing their UNIX code to Linux
code as being "the least efficient and most time consuming" way to
resolve this question, arguing instead that they need more of IBMs paperwork
regarding code that is neither UNIX nor Linux and unknown numbers of depositions
and experts.
Oh wait, there it is... "in complex software cases involving non-literal
copying". Isn't that only an issue for the contract claims and not for
this issue of copyright (non-)infringement? The laws we've been quoted don't
have anything about "non-literal" copying... they all talk about
"substantitive similarity".
Ugh. I have to go throw up too now.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 04:17 PM EDT |
It's the same old SCO story. We need more time and all of IBM's code. The court
already said twice they could have more time and already ruled that IBM didn't
have turn over all versions of AIX, period. The basis for that was solid then,
it's solid now, nothing has changed.
SCO's entire argument bolis down to this: The court should dismiss the summary
judgement claim by IBM because the magistrate judge didn't listen to us when we
said we need to dig up IBM headquarters and ship it to Utah for scrutiny.
While personally I think the IBM motion is going to fail, it's going to fail
more in the interests of SCO not having to re-file portions of this complaint
later on. It's probably too early in the interests of judicial efficiency to
make this type of declaration, although IBM has good reasons for seeking relief.
The court could provide relief in other forms without making a summary judgement
that will then have to be appealed by SCO.
I'm sure SCO is going to start touting the AdTI report as a
"discovery" that Linux is in fact a UNIX derivative, not because IBM
did anything wrong, but beauce Linus Torvalds commited a crime in 1991 by
filching code from Minix which filched it from UNIX. Does that not appear to be
where the "AdTI line of thinking" is going?[ Reply to This | # ]
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| Authored by: hauva on Friday, July 09 2004 @ 04:18 PM EDT |
I just wrote in the Yahoo message board
this.
The
point being: do they now really claim
"9. Linux
was first created in 1991, when a Finnish college student named Linus Torvalds
began developing Linux as a hobby after studying an operating system that one of
his professors had based on and derived from UNIX. IBM Statement Paragraph 2;
SCO Linux Introduction Version 1.2 Section 1-5 (2002)
Exh.S-7"
that Tanenbaum is the copyrigth
infringer? Oh, yes, I know Tanenbaum was never a professor
at the University of
Helsinki but I cannot think of any
other professor.
---
Ari Makela,
Helsinki, Finland
My name is Ari and I am a grokholic. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 04:23 PM EDT |
| Utter, blatant SCO lies here. [ Reply to This | # ]
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| Authored by: jesse on Friday, July 09 2004 @ 04:24 PM EDT |
I like the piece on Page 17, item 18:
Each of the UNIX
licensees was also required to hold "Software Products subject to
this
Agreement" i.e., UNIX and any "resulting materials" from "derivative works
based on such
Software product" under Paragraph 2.01 "in confidence." Sequent
Software Agreement, SOFT
000321 § 7.06 (Exh. 30); IBM Side Letter ¶ A.9 (Exh.
28). Moreover, Sequent's Software
Agreement prohibited it from making "any
disclosures of any or all of such SOFTWARE
PRODUCTS (including methods or
concepts utilized therein) to anyone, except to employees of
LICENSEE to whom
such disclosure is necessary to the use for which rights are granted
hereunder."
Sequent Software Agreement, SOFT 000321 § 7.06 (Exh. 30) (emphasis
added).
By at least ONE interpretation, "PRODUCTS" are the
"resulting materials", in other words, the binary results of compilation and
linking.... Not the source code. And all of the descriptions of the "PRODUCTS"
are binary files.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 04:24 PM EDT |
I only got to page 6 and I’m completely lost in this nonsense.
PJ, I know this is distasteful but please continue when you can. I always
appreciate your interpretations and even if I can’t understand the legal
documents I appreciate that they are there.
GOOD JOB[ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 04:25 PM EDT |
But judging from this pile, they were just there contributing to the document.
What a crock! These fools have either lost track of which lies they have told
to which courts, or they are staking their entire claim on the hopes the judge
will suddenly develop total amnesia. It was never about Unix code being copied
into Linux? So those millions of lines of code were all "non-literal"
copying I take it. [ Reply to This | # ]
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| Authored by: davidwr_ on Friday, July 09 2004 @ 04:26 PM EDT |
"9. Linux was first created in 1991, when a Finnish college student
named Linus Torvalds began developing Linux as a hobby after studying an
operating system that one of his professors had based on and derived from UNIX.
IBM Statement Paragraph 2; SCO Linux Introduction Version 1.2 Section 1-5 (2002)
Exh.S-7"
Well, this doesn't say Linux was stolen from Minix,
but it does imply Minux say Minix was "based on and derived from
UNIX."
I'm sure the good Dr. Tannenbaum can straighten this out to the
court's satisfaction.
Oh wait, as PJ pointed out in the thread-starter, he did
so here:
I set out to
write a minimal UNIX clone, MINIX, and did it alone. The code was 100% free of
AT&T's intellectual property.
Time to refer this one to a
grand jury.... :)[ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 04:28 PM EDT |
From page 80 of this beast, SCOX calculates the time needed to compare linux to
System V, which they declare must be done manually:
"Assuming each page comparison takes one (1) minute, and that there are
66,000 x 58,000 comparisons, this “initial” review could take on the order of
25,000 man-years.
Following the initial review, SCO and its experts must conduct a detailed
comparison of likely
copying candidates. This “second-level” review would also be very
lengthy."
Apparently their rocket scientists did the impossible then...
Tom Z.[ Reply to This | # ]
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- SCO's Memo in Opposition to IBM's Motion for Summary Judgment - The Ghost of AdTI - Authored by: oldgreybeard on Friday, July 09 2004 @ 04:39 PM EDT
- SCO's Memo in Opposition to IBM's Motion for Summary Judgment - The Ghost of AdTI - Authored by: Hop on Friday, July 09 2004 @ 05:19 PM EDT
- Therefore, One Must Conclude... - Authored by: Anonymous on Friday, July 09 2004 @ 05:21 PM EDT
- SCO's Memo in Opposition to IBM's Motion for Summary Judgment - The Ghost of AdTI - Authored by: seanlynch on Friday, July 09 2004 @ 05:34 PM EDT
- Stuff - Authored by: Yobgod on Friday, July 09 2004 @ 05:53 PM EDT
- Lanham Act - Authored by: Anonymous on Friday, July 09 2004 @ 06:02 PM EDT
- Unbelievable - - Authored by: jpgraves on Friday, July 09 2004 @ 06:00 PM EDT
- SCO's Memo in Opposition to IBM's Motion for Summary Judgment - The Ghost of AdTI - Authored by: Anonymous on Friday, July 09 2004 @ 06:12 PM EDT
- Time warping rocket scientists? - Authored by: Tsu Dho Nimh on Friday, July 09 2004 @ 09:37 PM EDT
- 25,000 man-years - Authored by: _Arthur on Friday, July 09 2004 @ 10:05 PM EDT
- Crap Math - Authored by: Anonymous on Saturday, July 10 2004 @ 05:53 PM EDT
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| Authored by: freeio on Friday, July 09 2004 @ 04:29 PM EDT |
"Does a monopoly get to attack its competition using surrogate
plaintiffs and
the court system as a weapon?" you ask, and the
answer of course is
yes. For the cost of the proper filing fees,
and some amount for legal
representation of some indeterminate quality,
anyone may attack anyone else
using the court system. The sad
fact is that the legal system is very
frequently used in this way, as a
means of intimidation, and the reason is
because it works so very
well. Anyone so attacked must either spend
heavily to mount a
spirited defense, or else settle, whether or not there is any
merit to
the claim. The use of surrogates is expectable in this day
and
age, once again because it works, and because seldom does anyone ever
really
pay for transgressions of this sort. Legal ethics?
Unfortunately it
is becoming an oxymoron, as far as mere observers
can see. If you have the
bucks, you can make trouble for years or
decades and pay no penalty worth
mentioning - a mere "cost of doing
business" for the big boys.
The
system is inherently broken.
Marty
---
Tux et bona et fortuna
est. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 04:39 PM EDT |
On the good side, the language and spelling seem much improved over past
efforts.
But if this is the best that SCO and its lawyers can do, they're in
deep weeds. Look for IBM's motion to pass muster with the judge.
If I didn't
know better, I'd say that this motion is written for an audience other than the
court. Not even in the summary can it avoid whinging and hand-wringing about
IBM's wrongs, while telling the court how much the court agrees with its (SCO's)
positions. This isn't likely to fly well.
Here again, too many things that
SCO has said in the past will no doubt come back to haunt it. No doubt the
court will continue to be entertained by SCO's unique theory of derivative works
and "non-literal copying", and the impossibility of SCO to prove its case w/o
additional discovery, which the court has been reticent in ordering.
The
court may not be enormously familiar with the details of computerized source
code comparisons, but they did order SCO to provide line-by-line comparisons and
specify details of the rights SCO claims to the IBM code. Claiming that this is
too complicated and difficult to generate after their well publicized claims
won't sit well. No doubt the court is reasonably familiar with search
technology (heavily used by lawyers), so it should treat these claims
skeptically.
Claiming to the court that IBM has failed to provide
court-ordered discovery -- that the court knows it has not ordered provided --
will not likely sit well with the court either.
Finally, addressing a
counterclaim regarding copyrights by refuting a straw-man argument about
contract rights shouldn't make sense to any sane reader.
By then going on and
essentially retracting its claims to copyright in Linux, SCO appears to be
gutting its case against AutoZone. Perhaps they hope that the judge chosen for
that case won't observe any precedents set in this case.
SCO is worried. Or,
if they aren't, they're not too bright. But we knew that, didn't we?
I look
for the tenth counterclaim to be granted summary judgement by the court. [ Reply to This | # ]
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| Authored by: jesse on Friday, July 09 2004 @ 04:48 PM EDT |
Foot note 21 is also interesting:
21
IBM claims that
even when SCO identified instances of exact copying of UNIX System V code
into
Linux, SCO did not specify the nature of the rights. IBM Statement ¶ 45.
This is wrong. In the example
referred to by IBM, SCO's answer specified that
the code had been copied from UNIX System V by Silicon
Graphics in violation of
the terms of its UNIX license. That is certainly specifying the nature of
SCO's
rights and how they were violated. ...
This is
specifically the memory allocation code which is public information, and hence,
not owned by SCO. [ Reply to This | # ]
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| Authored by: overshoot on Friday, July 09 2004 @ 04:49 PM EDT |
| I can't believe that Silver thinks that the Court will be impressed by the
"Statement of Disputed Facts," which is basically a restatement of SCOX' Second
Amended Complaint.
What, the Court might ask, does any of this have to do
with the narrow point addressed by IBM's Motion?
Where, the Court might ask,
does SCO present any kind of legal theory that suggests how these "disputed
facts" might alter the legal conclusion IBM seeks? As I recall, that theory is
required by Rule 56(f). Not in evidence. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 04:51 PM EDT |
They say that Linus learned about operating systems from his professor who
created Minix. But Linus was never a student of Tanenbaum. He has a quick
exchange of words with him on Usenet. That's not the same thing. Just another
ADTI untruth... but this time in a court document.[ Reply to This | # ]
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| Authored by: jbeadle on Friday, July 09 2004 @ 04:55 PM EDT |
Hmmm... It took until page 8 to see them play the "good faith" card.
I would imagine Magistrate Judge Wells has probably made a mental note to use
that phrase very judiciously in the future. ;-}
-jb
[ Reply to This | # ]
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| Authored by: blacklight on Friday, July 09 2004 @ 04:55 PM EDT |
If I am reading Judge Kimball right, the argument that is based on the most
rational interpretation of the law and that is most reasonably synthesized from
the facts will win the day with him. Let's put our feelings aside including
disgust and continue to focus on debunking SCOG's arguments - At some point in
time, SCOG's spine will snap with a loud crack. And then, IBM, Novell, Autozone,
DC, RH and SGI should throw a huge party.[ Reply to This | # ]
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| Authored by: Bystander on Friday, July 09 2004 @ 04:59 PM EDT |
At the top of page 5, the memo states that IBM has a current motion asking the
"Court to declare that none of IBM's ongoing "Linux activities"
infringes any SCO copyright." In the next paragraph the memo goes on to say
"in its capacity just as a Linux end-user, IBM would not be entitled to a
non-infringement declaration under the copyright laws if Linux contains any
infringing material -- no matter who contributed it."
This seems to ignore the fact that IBM is asking only for a declaration that
they are not infringing any of SCO's copyrights, and not a declaration that they
are guiltless in infringing ANYONE ELSE'S copyrights in Linux. SCO has no
standing to bring a copyright infringement action against IBM for copyrights
they don't own, or for material they do not hold the copyrights on. It doesn't
logically follow that a summary judgement in favor of IBM against SCO is
automatically precluded just because there MAY be some unidentified code in
Linux that was improperly contributed in violation of the copyrights of an
unknown third party.
The memorandum thus seems wholly unjustified in making the claim that
"IBM's claim thus adds the substantial issue of such third-party
contributions, made by thousands of unaffiliated computer programmers over
almost a decade." As far as this case is concerned, there is legally no
relevant issue with third-party contributions to Linux.
[ Reply to This | # ]
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| Authored by: Jude on Friday, July 09 2004 @ 04:59 PM EDT |
On page 13, under "B. SCO's Ownership Interest", SCO claims to own
Unix copyrights.
I think Judge Kimball is fairly familiar with the status of SCO's claims of
copyriught ownership, so I can't imagine what SCO hopes to gain by this rather
obvious misrepresentation.
[ Reply to This | # ]
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| Authored by: ak on Friday, July 09 2004 @ 04:59 PM EDT |
I am looking for people from Germany who are interested in launching a
full-scale legal attack against SCO.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 05:00 PM EDT |
| Two words: Verbal Diarrhea. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 05:02 PM EDT |
"I've similarly gotten the impression that SCO doesn't care if they
ultimately lose this case -- they must know they ultimately will -- just so long
as they can keep the FUD in the air by these court documents."
I am happy that PJ sees the light. I came to this conclusion long ago, and find
all these legal discussions rather a distraction from the main problem: SCOX
only function is to serve as a FUD factory as long as possible for Microsoft
before disappearing from this world.
[ Reply to This | # ]
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| Authored by: bruce_s on Friday, July 09 2004 @ 05:05 PM EDT |
Well, we can see where the money came for that report.
That would explain the requirement to gather the
information and produce it as quick as possible. It also
explains why the result was so badly written (in addition
to the blatant factual errors).
Bruce S. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 05:09 PM EDT |
Another point made in the Dvorak article was how far out
in left field the whole subject of Linux is compared to
the subjects they've historically covered. This
rightfully raises his suspicion -- what motivated them to
write about Linux in the first place? It's way outside
their area of expertise (if there is such an area).
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 05:10 PM EDT |
| SCO repeats this argument from a previous brief: "Under IBM's reading of the
contract, they get more rights than copyright alone gave them. Their
reading can't be right, because why would SCO agree to it if it meant what IBM
claims?"
It's really pretty simple. Money. IBM wrote a pretty large
check when this contract was agreed to. In return, they got some rights that
they didn't have before. In case SCO hasn't noticed, this is pretty typical
when people sign contracts.
So SCO's argument is exactly backwards from
reality. IBM paid to get more rights than they had before, and the contract
gives them those rights, just like you would expect. SCO's argument here is
pure male cow droppings.
MSS [ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 05:10 PM EDT |
| Could Microsoft be behind a smear campaign aimed at Linux?
Yes,
according this:
lin
k [ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 05:12 PM EDT |
Item 13 is really curious. "Moreover, SCO has identified evidence of
literal and non-literal copying of material from UNIX into Linux." But
they won't show this evidence, even though the judge has ordered them to
(twice). On the other hand, they can't possibly compare UNIX against Linux,
because it would take dozens of man-years and is just too difficult. What could
they have identified if they didn't compare the two to begin with?[ Reply to This | # ]
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| Authored by: mjreilly on Friday, July 09 2004 @ 05:12 PM EDT |
| One of SCO's argument against summary judgment for IBM's 10th counter claim is
that "it is possible for SCO to set UNIX and Linux side by side and simply
compare", but "this would waste an enormous amount of time and
resources".
Yet at the same time, they wish to stay IBM's 10th counter claim
pending resolution of the Autozone case since the Autozone case will resolve the
same issues.
Since Autozone has done no Linux development, the only way
for SCO to prove Linux infringement would be via the same comparison that they
say would be a waste of time in the IBM case.
By the way, if they don't have
any proof now that Linux infringes, what are they basing their Autozone case
on? [ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 05:15 PM EDT |
Page 81 excertp
<i>Examples of facts from discovery to date that show copying of
material from UNIX into Linux include (i) copying of SCO’s UNIX Executable and
Linking
Format (ELF) codes in Linux; (ii) substantial similarity in the Read-Copy-Update
(“RCU”) routine
in Linux version 2.6.5 and in patches to Linux and the RCU version in SCO’s
copyrighted work,
specifically UNIX SVR4.2 MP; (iii) copying of UNIX SMP 4.2 System V
initialization (SYS V
init) code in Linux version 2.6; (iv) substantial similarity in the user level
synchronization (ULS)
routines in Linux and similar routines in UNIX; (v) copying of SCO’s UNIX System
V IPC code in
Linux 2.4.20; and (vi) copying of SCO’s copyrighted UNIX “header and interfaces”
in Linux.
Gupta Aff. ¶¶ 3-86. Another example of the results of SCO’s comparison of source
code is the
copying of the journaled file system (JFS) module in IBM’s successive later
versions of AIX in
Linux version 2.6. Id. IBM has not produced the early versions of AIX, so that
SCO cannot (yet)
establish how the JFS in Linux version 2.6 derives from the JFS in UNIX. Harrop
Decl. ¶¶ 88-90.</i>[ Reply to This | # ]
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| Authored by: bruce_s on Friday, July 09 2004 @ 05:17 PM EDT |
In the response to this complete pile of lies and
misdirections, I can only think of one thing:
Impailment is too good for the lot of them.
Bruce S. [ Reply to This | # ]
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| Authored by: _Arthur on Friday, July 09 2004 @ 05:21 PM EDT |
Pages 79, 80 and 81 are very interesting:
"Linux code that is derived or modified from UNIX may not becessarily bear
line-by-line similarity"
"Attempting to use an automated process to perform a complete comparaison
on _all_ the source code on UNIX and Linux is not feasible..."
"Because the shortcomings with automated code comparisons processes, SCO
and its experts must rely largely on manual comparisons. [...] This process
can take many months"
They seem to argue that they have not done this comparison so far ( or have
found nothing). They seem to argue they haven't bothered with it because it
wasn't necessary for their case.
But it is necessary for the 10th Counterclaim, so they will begin Unix vs Linux
eyeball comparisons now, a several month discovery period will be needed...
They seems to be confident than IBM programmers testimony will be
sufficient for them to prove Breach of Contract, no need to actually pinpoint
SysV code into Linux...
_Arthur
[ Reply to This | # ]
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| Authored by: maco on Friday, July 09 2004 @ 05:21 PM EDT |
| Judge Kimbell finally gets around to ruling on "derived".
Kimbell might be a
good judge, but until he rules on that, everybody's time is being wasted. It is
a matter of law, isn't it, not for a jury to decide? [ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 05:27 PM EDT |
The Many Flavors of
UNIX, cited in SCO's Memo in Opposition to IBM's Motion for Summary
Judgment, list Debian GNU/Hurd, Debian GNU/Linux, GNU Herd, Linux, Minix,
OpenLinux, Red Hat Linux, and SuSE in its list of UNIX Variants and
Clones but does not distinguish between those that are variants and those
that are "clones".
Interesting...
Debian GNU/Hurd you're next
on SCO's list.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 05:33 PM EDT |
First they make their theory very clear: "contract violation",
"no copyright infringement except for the redistribution of AIX and
Dynix/ptx", "there is non literal copying and it is very difficult to
find it".
Second the quality is good (that is pleasant even for the opposing side, that
is: IBM and, since we are Linux users, us).
Third it is still full of funny and interesting law. The "IBM cannot
disclose its own code", "non-literal copying", "too
difficult to compare" (the millions of lines of code), etc... are
exhilarating.
All in all, a rather good document (not as good as one of Darl Mc Bride's
comments, but good enough).
Loïc
[ Reply to This | # ]
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- Good points - Authored by: Anonymous on Saturday, July 10 2004 @ 07:22 AM EDT
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| Authored by: fava on Friday, July 09 2004 @ 05:37 PM EDT |
Is PJ now on the distrubution list for documents?
The copy on the document that I grabbed from the pacer holding area was a
scanned version of the 12 page memorandum without any attachments. This version
is a pristine 86 page original that is obviously not scanned.
Is PJ now getting documents directly from the parties involved?[ Reply to This | # ]
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- Bug - Authored by: Anonymous on Friday, July 09 2004 @ 05:42 PM EDT
- Bug - Authored by: fava on Friday, July 09 2004 @ 06:10 PM EDT
- SCO's own website - Authored by: mjreilly on Friday, July 09 2004 @ 05:48 PM EDT
- probably from www.sco.com - Authored by: Anonymous on Friday, July 09 2004 @ 05:54 PM EDT
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| Authored by: _Arthur on Friday, July 09 2004 @ 05:41 PM EDT |
They insist that the Sequent Contract and the AT&T/IBM contracts are
differents, there is no sidelettter with Sequent.
They seem to believe that even if it would be permissible for IBM to
contribute lines of codes written by IBM, IBM would still be prevented to
reveal Dynix lines of code written by Sequent employees....
That doesn't hold water: AT&T UNIX Licences are NON-TRANSFERABLE.
IBM bought Dynix code, and now use it under IBM own license.
As long the C procedures do not contain UNIX V lines, it doesn't matter if IBM
programmers or Sequent programmers wrote them.
SCO also skips the AS A WHOLE quote of the contract
_Arthur[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, July 09 2004 @ 05:45 PM EDT |
I was curious why the AdTI study came out when it did. There didn't seem to be
any reason for a questionable release. I guess I now know.[ Reply to This | # ]
|
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| Authored by: ujay on Friday, July 09 2004 @ 05:45 PM EDT |
No doubt IBM, like many litigants, would like to win it's claim
before it even has to file it. But if IBM has a claim, it must support that
claim and permit SCO to test it through discovery and on it's
merits.
Talk about the pot calling the kettle black. We've had
Darl, from day -1 talking about 'tons of code', 'truckloads of code', 'millions
of lines of code', and even having 'everything they need' to win the case.
To date, SCO has not presented one character of code that can be
irrefutably shown to be infringing and has resisted IBM's attempts to get
clarification of any code in question.
To paraphrase their own legal
strategy 'if SCO has a claim, it must support that claim'.
Just a thought
from a 'hippy hacker'.
---
Windows comes from a box. Linux comes from
a community. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, July 09 2004 @ 05:49 PM EDT |
Brilliant maneuvering from IBM has put SCO in a double bind. SCO loses either
way. If the summary judgement goes through IBM wins. To prevent this SCO is
trying to prove:
- this is not about copyrights at all
- what we know now is insufficient to prove our case
which is precisely what IBM wants them to tell the judge. SCO needs to dig it's
own grave in order to defeat this motion.[ Reply to This | # ]
|
- Double Bind - Authored by: Anonymous on Friday, July 09 2004 @ 09:25 PM EDT
| |
| Authored by: Anonymous on Friday, July 09 2004 @ 05:52 PM EDT |
| Having just finished reading the whole memorandum, it appears that there is an
interesting line of thought at the very end (starting on page 84). Basically,
SCO claims the choice-of-law provision allows them to bring the NY law to govern
interpretation of the Sequent licensing agreement for Dynix. They then
quote Liu v.
Price Waterhouse LLP, 302 F.3d 749 (7th Cir. 2002), which on its face
does give them enough of a dispute to probably avoid the declaration IBM is
seeking. Basically, as summarized and argued in the document, the disposition
of derived works is covered (for Dynix) by the Sequent licensing agreement,
without the amendment, and they have a case to point to. What makes this
interesting, to me, is that disputing it will basically require a ruling on the
meaning of the Sequent licensing agreement and the amendment as published in
echo. [ Reply to This | # ]
|
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| Authored by: snakebitehurts on Friday, July 09 2004 @ 05:53 PM EDT |
Ahhh, finally got a login.... ;-)
Line by line comparison is least efficient? Hardly. If I am not mistaken, the
Open Source community already has the tool developed to do it.
Eric Raymond has been looking for sco source code for some time.
http://www.catb.org/~esr/nosecrets/
SCO, if it's too much work for you, the open source community will be happy to
do it for you.
[ Reply to This | # ]
|
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| Authored by: Thomas Frayne on Friday, July 09 2004 @ 05:55 PM EDT |
(Third paragraph of SCOG's preliminary statement)
That's what IBM has been saying about SCOG for a year, so SCO's statement must
be right that IBM must comply with proper discovery requests from SCOG so that
SCOG can build its defense against IBM's claims.
However, IBM has not defied two court orders, and I have yet to see a convincing
argument that IBM has failed to comply with the March order, or that the March
order resulted from IBM's stalling.
The judge has not ordered IBM to produce anything more than was specifically
stated in the March order, and, according to IBM, that was produced within days
of the order. The judge wants to see what evidence SCOG got from the last
discovery before ordering more.
Meanwhile, IBM might be able to throw this argument back into SCOG's face. I
hope they do.
[ Reply to This | # ]
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| Authored by: dcs on Friday, July 09 2004 @ 06:02 PM EDT |
Well, they are down to non-literal copying. Is there any basis to such a thing?
What the hell is a "non-literal" copying? Copyright protects form, not
essence!
---
Daniel C. Sobral
[ Reply to This | # ]
|
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| Authored by: Anonymous on Friday, July 09 2004 @ 06:07 PM EDT |
| I bet Judge Wells wishes she could take those words back. [ Reply to This | # ]
|
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| Authored by: Anonymous on Friday, July 09 2004 @ 06:16 PM EDT |
"B. SCO’s Ownership Interest
6. Through a series of corporate acquisitions, SCO owns all right, title, and
interest [...]. SCO also owns copyrights and additional licensing rights in and
to UNIX. Specifically, in May 2001, Caldera International, Inc. (“Caldera
International”) purchased [...] and their UNIX-related assets from The Santa
Cruz Operation, Inc., IBM Statement ¶ 14, which had acquired these assets in
1995 from Novell, Inc. (“Novell”). See Asset Purchase Agreement Between SCO and
Novell, Sept. 19, 1995 (Exh. 32)."
Oops. They did not reference the Amendments and the original agreement does
expressly exclude the copyrights ...
Do they get in trouble for missing that? Or does the Exhibit 32 include the
Amendments?
TToni[ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 06:23 PM EDT |
I thought that SCO had reduced its case against IBM to a contractual one.
It is undeniable that (some versions of) Linux ARE a derivative of Unix because
they contain code that IBM has written for Unix.
1) The only claim that SCO has to this code is via its contract with IBM. SCO
would win its case against IBM if it could prove to the court that the contract
forebade IBM to contribute the code to Linux.
2) If it could also prove that the contract required IBM to assign the copyright
on this code to SCO then all users (including IBM) of the offending code in
Linux would then be shown to be infringing SCO copyright.
If I have not misunderstood this, then SCO needs to look very deeply into IBM's
code and other documents. This is not to find lines of code that (new)SCO thinks
Novell asigned to (old)SCO, but to find code that IBM has written which SCO
believes that should not have been contributed to Linux.
Looked at like this, SCO's current actions make sense. We should therefore be
considering the implication of statements 1) and 2) above.
Am I correct or has SCO gone back to fishing for Novell code in Linux?[ Reply to This | # ]
|
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| Authored by: Anonomous on Friday, July 09 2004 @ 06:33 PM EDT |
| Linus Torvalds began developing Linux as a hobby after studying an operating
system that one of his professors had based on and derived from
UNIX
SCOG is attempting to use the word 'derived' in its accepted
dictionary sense in one place, e.g. here, while insisting on supplying its own
definition of 'derived' elsewhere, e.g. when claiming AIX is derived from SYSV.
The court must enjoin SCOG to use only a single definition of any word
throughout its pleadings.
-Anonomous.
[ Reply to This | # ]
|
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| Authored by: Anonymous on Friday, July 09 2004 @ 06:39 PM EDT |
The question that is begging to be answered is what is next in Microsoft's war
plan? Eventually SCO's court battle will play out and eventually people will
stop talking about AdTI.
Is there a history of MS's previous anti-linux campaigns anywhere? It would be
amusing to try to extrapolate what their next move might be.[ Reply to This | # ]
|
| |
| Authored by: midav on Friday, July 09 2004 @ 06:59 PM EDT |
| IBM does not contend that, with the benefit of discovery going forvard, SCO
could not develop facts to oppose The Tenth Counterclaim. Should not it be
'without the benefit of discovery'? What Mr. Marriott is
supposed to say? "Your Honor, IBM, in fact, does contend that 'with the benefit
of discovery going forward, SCO could not develop facts to oppose The Tenth
Counterlclaim'" I think this is exactly what IBM contends, that even with all
benefits of discovery going forward, TSG still could not develop facts to oppose
the Tenth Counterclaim. How you can argue with people who say one thing and
mean completely opposite? Do they even understand what other people are saying?
No wonder, they have serious difficulties with the interpretation of both
AT&T-IBM and Novell-SCO contracts. [ Reply to This | # ]
|
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| Authored by: Anonymous on Friday, July 09 2004 @ 07:00 PM EDT |
I must be a simpleton or somthing, because I don't understand what the issue is
about discovery. Doesn't SCO have access to its own code? Does it also not have
access to Linux code. If it doesn't I can send them a copy!
Isn't the IBM case a moot point if they can't find any of SCO code in Linux?[ Reply to This | # ]
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| Authored by: scoove on Friday, July 09 2004 @ 07:07 PM EDT |
| This could be a subtle effort to support the notion that Linux might be
illegal to use. Where there's smoke, there's fire.
I've seen the effect
of this firsthand. A collection of Fortune 1000 firms I work with (thru IT
depts/personnel) such as a company that handles much of the world's credit card
processing, appear to have concluded that Linux is tainted. While this comes
from the rank and file contacts and not from top-level policy makers, I've had
nearly every IT contact I work with at several of these companies indicate that
the IT execs feel they cannot risk any further work on Linux until the whole
legal situation is resolved.
Many of the rank and file, in fact, are
repeating a misconception that SCO actually won its litigation vs. Redhat, and
commented that they thought Apple must be next "because they're based on a
copied version of UNIX too." Comments like "Oh, we were starting to develop on
Linux but the bosses pulled the plug because it apparently was pirated from some
commercial UNIX" consistently crop up.
Curiously, much of this information
seems to come from a Sun perspective and it may be a beneficiary of the Linux
FUD. Many of these, such as the credit card processor, are not Microsoft shops
but rather Sun and Oracle shops. Again, just my conjecture but when you
encounter firm after firm telling you they're sticking with Sun and Oracle
because they've been told it's safe, it is unusual (how do they know Solaris
isn't SCO property? What if Sun put their own changes to UNIX into Linux without
SCO's permission, just like IBM/JFS? Wouldn't that also make Solaris SCO
property? You get my point...)
It does make you wonder what the Sun and
Oracle salesfolks are claiming - I'm hopeful Sun realizes it had better send a
message to its sales folks ASAP on the potential for this FUD approach
backfiring. Wanna make sure Java dies and Solaris is only known as an exhibit in
the antique computer museum? Just get caught peeing in the open source
pool.
I've gone to the effort of handing out my business card with Groklaw's
URL written on the bank (and have considered having a "Get the facts on Linux"
card printed), but most folks simply don't have the energy nor the interest to
learn all these details just in order to overcome FUD.
*scoove*
[ Reply to This | # ]
|
- Smoke = Fire - Authored by: DebianUser on Friday, July 09 2004 @ 07:37 PM EDT
- Smoke = Fire - Authored by: Anonymous on Friday, July 09 2004 @ 08:02 PM EDT
- Smoke = Fire - Authored by: Anonymous on Friday, July 09 2004 @ 08:37 PM EDT
- Smoke = Fire - Authored by: Anonymous on Friday, July 09 2004 @ 09:13 PM EDT
- Smoke = Fire - Authored by: Anonymous on Saturday, July 10 2004 @ 09:42 PM EDT
- Smoke = Fire - Authored by: Anonymous on Saturday, July 10 2004 @ 03:01 AM EDT
- A predictable consequence of the necessary trial - Authored by: AllParadox on Friday, July 09 2004 @ 11:26 PM EDT
- Same here - Authored by: Anonymous on Saturday, July 10 2004 @ 12:33 AM EDT
- Smoke = Fire - Authored by: mrcreosote on Saturday, July 10 2004 @ 01:16 AM EDT
- Not Here on Wall St - Authored by: Anonymous on Saturday, July 10 2004 @ 10:39 AM EDT
- This stuff is important - Authored by: MadScientist on Saturday, July 10 2004 @ 06:59 PM EDT
| |
| Authored by: whoever57 on Friday, July 09 2004 @ 07:16 PM EDT |
| Through a series of corporate acquisitions, SCO owns all right, title, and
interest in
and to UNIX operating system source code, software, licensing
agreements
Pray tell me, SCO, if you own "all right, title and
interest in .... licensing agreements, why do you pay Novell 100% of the
SysV licensing revenue that you receive? [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Friday, July 09 2004 @ 07:42 PM EDT |
We all agree that it is a nasty job to do, but someone has to do it. And you are
doing it beyond anybodys expectations! I wait for the day when you will stand up
in court and tell them exactly what happend, because you might be the only
person on earth that has this knowledge (and can prove it). After that it will
be all champange, laughter and dance (in a red dress :-). Keep up to this
moment, i think it is not soooo far away...
Linux_Inside[ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 07:46 PM EDT |
"one of his professors"
Last time I checked Tannenbaum was in Holland or Belgium, while the Finnish kid
Linus was in Helsinki.
In that case, I will also put on MY resume that I studied operating systems
under Tannenbaum. In Norway, 1989. Got the book to show for it: "Operating
Systems" and a bootable floppy. And no, I never even saw a picture of
Tannenbaum, only remember the name of the author of my text book, Andrew S
Tannenenbaum.
I can't believe SCOX is paying real money for this kind of drivel. As long as
Yarro can cash in on the Baystar money/SCOX stock buyback, all the crooks are
happy, I guess. I consider my own question answered.
The instructions to the SCOX legal counsel must simply be:
Keep the case going, steal and lie if you have to. That is all we will ask.
Every lie takes up some of the court's time, and every day we can offload some
more of our $5 shares is a day well spent.[ Reply to This | # ]
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| Authored by: fjaffe on Friday, July 09 2004 @ 07:58 PM EDT |
I've got the entire document extracted from PDF and am in the process of moving
footnotes to the end and proofing the document.
I could use help with a formatting wizard, someone who can get this so that
Geeklog doesn't have a fit. Any volunteers? Please email me or reply to this.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 08:05 PM EDT |
I'll bet someone's already answered this question months ago, but here
goes:
If Sequent was supposed to hold all derivative works, etc. as well as
the Sys V code in confidence, how on earth could they have applied for a patent
for their NUMA-related work? The patent applications are publicly available. So
I guess there can never be any patents related to anything in UNIX as that would
require breaking the rules set forth in the contract. (If you interpret the
contract that way, that is. Which I'm sure SCO is and the rest of
sentient life on this planet isn't.) [ Reply to This | # ]
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| Authored by: grayhawk on Friday, July 09 2004 @ 08:31 PM EDT |
It is obvious that SCO depends on a bunch of FUD to completely confuse the
issues at hand.
1 They are the ones who filed the case and it is their burden to prove the
infringement and not IBM's.
2 They claim they own the copyrights to Unix and yet they have yet to produce
the documents that show they own them.
3 They stated repeatedly the Linux contains System V code and yet no code has
been presented by them that is in Linux which is System V.
4 They claim that they own all derivative works that have ever been produced as
a result of having come in contact with or been associated with System V and yet
there are Unix version in existance that have been legally declared
non-derivative works. eg. Minix, BSD They do not own them as pronounced by the
courts and/or AT&T.
5 They claim that they have the power to revoke the IBM contract but fail to
prove such.
Nothing like filing legal claims and then expect the defendent to provide the
proof to their filings.
It is time the judge layed it out that they must provide the proof and that they
must do so now or their case will be dismissed with prejudice.
It is tiresome reading their statements made by them that have no basis in fact
and no proof to back them up. It is time someone held them to their claims and
forced them to prove it. Failing to do so should result in some serious
penalties, including jail time for the executives who perpetrated this cherade.
---
All ships are safe in a harbour but that is not where they were meant to be.[ Reply to This | # ]
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| |
| Authored by: Anonymous on Friday, July 09 2004 @ 08:40 PM EDT |
If against all odds this goes before a jury:
Shaugnessy: Mr Torvalds, where did you study?
Torvalds: Helsinku U.
Shaugnessy: Was Andrew S Tannenbaum one of your professors?
Torvalds: No. In fact I hardly ever went to any lectures anyways, but he was
certainly not a professor at Helsinki U.
AST on the stand
Shaugnessy: Did you write an operating system called Minix?
AST: Yes, I did.
Shaugnessy: Was this operating derived from Unix SysV?
AST: Absolutely not. Minix was written from the bottom up to demonstate the
architecure of a microkernel. A microkernel is the very opposite of Unix SysV,
which is a monolithic kernel.
Shaugnessy: This is very technical, and I certainly don't understrand the
difference. Could you explain in simple terms what is so different between a
microkernel and a monolithic kernel?
AST: You should read my book "Operating systems" to understand this.
But if I am forced to give you a short aswer, a micro kernel is basically lots
of independent small pieces passing messages to each other, while a monolithic
kernel is basically a big monster performing all those tasks. Basically, they
are as similar as cats and fishes.
Shaugnessy: SCO claims that you derived Minix from Unix. Is that correct?
AST: No. Again, cats and fishes. Not even cats and dogs.
Shaugnessy: Are you familiar with Linux?
AST: Yes.
Shaugnessy: When SCO claims that Linux was derived from Minix, is that a correct
claim?
AST: That would make no sense. Linux is a monolithic system, like SysV. If
these were derived as SCO says, we'd being going from cats to fishes, and then
derive fishes from cats. It is unconceivable.
Shaugnessy: Ah, so Linux is monolitghic, just like SYSV?
AST: Yes.
Shaugnessy: So since SysV came first linux must have been derived from SYSV?
AST: No. Almost all operating systems were monolithic. Before SYSV, there were
probably hundreds of different monolithic operating systems; every hardware
vendor had their own. So, saying that Linux is derived from Sysv because it is
monolithic is like saying humans are derived from diesel, because we're
organic.
Shaugnessy: No further questions, you Honor.
Kinball to Boies: Your witness.
Boies: Lookee here at my arm, how it is wawing. Mr Tannenbaum, were you in
fact a professor in Holland?
AST: Certainly was.
Boies: And did you indeed write Minix?
AST: Yes.
Boies: I have statements from a person that claimed he wrote parts of Minix.
Why are you lying about Minix? How much did IBM pay you to testify? Are you
sure that are you not a terrorist?
Shagnessy: I object!
Kimball: Sustained. Mr Boies, will you please state your questions?
Boies: Looksee, here is Chewbacca. Did you or did you not smoke some pot on
december 4th 1988, mr Tannenbaum?
Shagnessy: I object!
Kimball: Sustained. Counsel, will you please join me in my chambers.
etc.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 08:45 PM EDT |
Okay so SCO is implying that Linus ported code from minx and claim that minx was
derived from UNIX. Even if we ignore the fact that these are lies, what
relevance does this have with the IBM case? It would seem to me to be two
separate and unrelated issues.[ Reply to This | # ]
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| Authored by: Latesigner on Friday, July 09 2004 @ 08:51 PM EDT |
I realize, it's not news, that there is a disconnect between the legal system
and justice but this is awful.
Why is there no crushing penalty for misusing the legal system of a free society
in this way ?
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 09:05 PM EDT |
Non-literal copying: Using an arrangement of letters, numbers, symbols, and
spaces on an electronic device in much the same way as has been done in software
we lay dubious claims to.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 09:11 PM EDT |
SCO is claiming that the licenses allowed Sequent, IBM, etc... to derive any
code they wanted for internal use. I don't see how it would prevent Sequent from
patenting anything. SCO would also claim they have the rights to the patent
under their explanations in this document.
However, SCO is of the opinion that anybody "tainted" with having any
knowledge whatsoever of Unix cannot contribute to Linux. And it goes even
further.
From page 71 on to the end, it gets really weird. The whole tone of the document
changes. Basically, it talks about all the discovery that will need to go on to
fight the 10th Counterclaim. They are trying to bifurcate the case and extend
the discovery again. They want to depose the world and it will take 25,000
man-years to sift through the basic code. That doesn't include all the revisions
of AIX and Dynix that IBM controls. And even still there are bound to be things
they haven't thought of that will need more discovery.
It gets very weird.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 09:56 PM EDT |
How does SCO decide if a file infringes?
Answer: they look for
similar file names
It is written plainly in the last point of
Harrop's declaration!
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 10:05 PM EDT |
If SCO's lawsuits aren't legally frivolous, then I guess the concept
no longer exists.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 10:10 PM EDT |
"you're honor, we can't have a judgement that the sky is
blue yet; there are countless miles of unexplored
subterranian caves we have yet to search!"
Really, what does their AIX contract rights theory have to
do with copyright? Why do they need AIX? Do they think
maybe in one of the "revisions" of code there lies a
copyright they didn't know they had? How can you find a
copyright you didn't know you had by looking at the
copyrighted material?
My head hurts. [ Reply to This | # ]
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| Authored by: _Arthur on Friday, July 09 2004 @ 10:21 PM EDT |
1) The old we-need-all-of-AIX including notes one.
2) The "we need to make all Linux contributors testify they NEVER saw the
UNIX code, EVER" fishing expedition
3) The we need to compare every line of every version of UNIX, AIX, Dynix,
Linux to every other, in search on non-literal or obfuscated code fishing
expedition
plus the other abusives discoveries[ Reply to This | # ]
|
- another one - Authored by: Anonymous on Friday, July 09 2004 @ 11:00 PM EDT
| |
| Authored by: Anonymous on Friday, July 09 2004 @ 10:23 PM EDT |
Even if Linus studied UNIX before developing Linux ...
Even if Linux does not have a mechanism to check for source code copyrights ...
Even if IBM contributed code to Linux ...
SCO still needs to prove how and where IBM put UNIX code into Linux, right? Why
does the judge continue to tolerate SCO for dancing aroung the subject like
that? Why doesn't the judge make SCO put up solid evidence so the trial can
move forward?
Unless the court mandates otherwise, SCO will just be too happy to keep telling
us the same crap over and over. It will never end.[ Reply to This | # ]
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| |
| Authored by: Anonymous on Friday, July 09 2004 @ 10:38 PM EDT |
69. The record demonstrates that many individuals familiar with
Linux recognize that source code therein may infringe SCO[sic]'s copyrights. Two
examples are noteworthy.
70. In an article dated March 3, 2004, for example,
the person regarded as the developer of Linux, Mr. Torvalds, grudgingly
acknowledged with respect to the issue of whether
Linux infringes on SCO[sic]'s
copyrights: "The only thing that makes any ounce of sense is their claims
about somebody using (Unix) System V libraries." (Exh.
64.)
So, Linux 'may infringe SCO[sic]'s copyrights' because
it might make sense that somebody could use the SVrX libraries on
Linux.
--Bill P
Mighta strong case ya got thar, boy; mighta strong. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, July 09 2004 @ 11:47 PM EDT |
Nobody I know has proved that the AdTI was taking money from Microsoft,
but a lot of critics are making the claim.
IMHO this was too strong a
statement to make. And also too wrong since a spokesman of microsoft has
reportedly said "We support a diverse array of public policy organizations with
which we share a common interest or public policy agenda such as the de
Tocqueville Institution"? (http://www.wired.com/news/linux/0,1411,52973,00.html)
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, July 10 2004 @ 12:05 AM EDT |
As I recall, IBM asked SCO to reveal the lines of code of LINUX that it
distributed to third parties. (In other words, did SCO distribute their vaunted
code under the GPL or some other license so that IBM is no longer infringing on
any copyrights of theirs?)
SCO completely ignores the question and I think IBM can pound away at them for
that.[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, July 10 2004 @ 12:23 AM EDT |
"These non-literal claims seem really dodgy to me but hey IBM confessed
they contributed, didn't they."
Confessed? telling choice of words there, Darl!
However, I do agree with the bit about the dodgy claims.[ Reply to This | # ]
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| Authored by: Khym Chanur on Saturday, July 10 2004 @ 01:18 AM EDT |
| I don't think this is necessarily connected to Samizdat or AdTI. Both
Minix and Linux present the same set of system calls to applications, so in a
look-and-feel sense they're clones of SysV, plus the base libraries and apps are
the same (even if that's not part of the kernel). Thus, with SCO desperatly
trying to find some way to tie SysV to Linus in a manner that might possibly
fool a non-technical audience, linking SysV to Minix and Minix to UNIX probably
inevitable (though AdTI might have inspired them). ---
Give a man a
match, and he'll be warm for a minute, but set him on fire, and he'll be warm
for the rest of his life. (Paraphrased from Terry Pratchett) [ Reply to This | # ]
|
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| Authored by: res1n on Saturday, July 10 2004 @ 01:25 AM EDT |
Okay, I noticed a little something in reading the section of the contract that
SCO references in the Statement of Disputed Facts section @ D.1.16 on pages 16
and 17 that got the gears turning. Reading this section, with SCO's emphasis,
really made it jump out at me...and maybe I'm wrong here, but it would seem that
the license grants IBM the right to use software product "solely for
Licensee’s own internal business purposes and solely on or in conjunction with
designated CPUs".
In this case the software product is of course
UNIX SYS V. Okay, here's the part that caught me funny...
IBM also has
"...the right to modify such Software Product and to prepare derivative works
based on such Software product, provided the resulting materials are treated
hereunder as part of the original Software Product" wouldn't the bold
portion preclude the use and/or the distribution of any derivative work outside
the "Licensee’s own internal business purposes and solely on or in
conjunction with designated CPUs".
Maybe I'm way off and am just
understanding the language incorrectly, but it sure seems to me that it could be
interpreted that way. So if it can be, and AT&T, Novell, etc. allowed IBM,
Sequent, and others to distribute their derivative works for all these years
without objection isn't there a contract enforceability issue here? Maybe there
was other language elsewhere in the contract that provided for the distribution
of derivative works, it's been a long time since I've read it, but I don't
recall any.[ Reply to This | # ]
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| Authored by: ankylosaurus on Saturday, July 10 2004 @ 01:33 AM EDT |
| I think there's an 'off by a year' typo in the document near the top of p6,
where it says:
When IBM was last before this Court, it argued for,
but
did not receive, an August 4, 2004 fact-discovery cut-off.
Now IBM seeks the
retroactive imposition of an April 19, 2003 cut-off – four months earlier
than the cutoff
IBM requested last time, and ten months earlier than the cut-off
this Court imposed.
(Emphasis added, of course.)
Does this
clear mis-statement have any significance? I imagine not - other than
demonstrating the less than stellar competence of the Boies, Schiller &
Flexner support staff at proofing documents.
---
The Dinosaur with a
Club at the End of its Tail [ Reply to This | # ]
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- Give'em a break - Authored by: Anonymous on Saturday, July 10 2004 @ 06:37 PM EDT
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| Authored by: jacks4u on Saturday, July 10 2004 @ 02:58 AM EDT |
Can they really do this? Slander of Title and claim of ownership, in court
documents, and based on a shill study that has been hotly contested by many of
the worlds leading authorities?
And that is what this is - a claim of ownership of Linux.
They can't find lirteral copying, so they are trying to claim (unauthorized?)
derivitive works.
It'll be inetrresting to see IBM's response. [ Reply to This | # ]
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| Authored by: wharris on Saturday, July 10 2004 @ 04:26 AM EDT |
I have to get some sleep, so I haven't read all the replies. My apologies if my
points are redundant to those already made.
SCO will lose this motion, though I believe the court will give them one more
do-or-die chance at discovery. First, they have no claim at all to copyright on
AIX, and a very weak claim (which IBM will easily refute in the hearing) to
Dynix copyright. That makes AIX totally irrelevant to the question of whether
Linux infringes Unix SysV. Thus, even if everything SCO says about needing
more discovery on AIX is true, that has no bearing on this particular motion.
Likewise, the question of whether IBM's contributions are forbidden by
CONTRACT is a separate issue from whether they violate SCO's COPYRIGHT.
Thus, another big chunk of SCO's argument is completely irrelevant to this
motion.
SCO goes to great pains to point out that they never (in court) accused IBM of
violating System V copyrights. I'm sure IBM will use as part of their argument
that if the copyright question is so minor that SCO has not even prepared
expert testimony on it, by all means accept SCO's explanation that it has no
current evidence of copyright violations and advance the case on to an
examination of the contract. Of course, this means that IBM's claim of
Lagahram act violations is now a slam-dunk, but SCO should have thought of
that before it used a legal document to explain how it would take 25,000
man-years for a (MIT?) team to conduct a code comparison for violations.
My prediction: (1) Hearing deferred for at least 30 days (sadly, possibly until
Feburary 2005), along with a sternly-worded warning to SCO that it must
provide prima-facie evidence of copyright violation or face partial summary
judegement. (2) After delay, motion granted.[ Reply to This | # ]
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| Authored by: futureweaver on Saturday, July 10 2004 @ 04:53 AM EDT |
Early on, this doc says "IBM’s internal
documents even refer to AIX
as a derivative work based on UNIX System V. Exhs. S-5 at 2 (“AIX
was
derived from System V.”)", clearly wanting to interpret IBM's
"derivative" to mean "is a derived work of" in the strict copyright
sense.
Later, re Minix, it says :"Linus
Torvalds began developing
Linux as a hobby after studying an operating system that one of his
professors
had based on and derived from UNIX." But we know that Minix isn't a derived
work of UNIX in any copyright sense, becasue of what AT said : "I set out to
write a minimal UNIX clone, MINIX, and did it alone. The code was 100% free of
AT&T's intellectual property." Presumably he would just repeat this if
deposed. Well, I guess we already knew we were in a looking-glass
world here. But this document surely deserves some sort of Humpty-Dumpty prize for the extent to which the same word is used to
mean different things in different places.
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| Authored by: Anonymous on Saturday, July 10 2004 @ 05:33 AM EDT |
Each time SCO needs to tell the judge about the "good faith" quote it
weakens their position. Good faith should be obvious from their behaviour. Do
you see IBM quoting that they are a good boy? No, their actions show it.
And off course the moment Wells says anything differently all the arguments
based on this collaps.
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| Authored by: Anonymous on Saturday, July 10 2004 @ 05:39 AM EDT |
| page 81:
IBM's Tenth Counterclaim. Examples of facts from discovery to
date that show copying of
material from UNIX into Linux include (i) copying of
SCO's UNIX Executable and Linking
Format (ELF) codes in Linux; (ii) substantial
similarity in the Read-Copy-Update ("RCU") routine
in Linux version 2.6.5 and
in patches to Linux and the RCU version in SCO's copyrighted work,
specifically
UNIX SVR4.2 MP; (iii) copying of UNIX SMP 4.2 System V initialization (SYS V
init) code in Linux version 2.6; (iv) substantial similarity in the user level
synchronization (ULS)
routines in Linux and similar routines in UNIX; (v)
copying of SCO's UNIX System V IPC code in
Linux 2.4.20; and (vi) copying of
SCO's copyrighted UNIX "header and interfaces" in Linux.
Gupta Aff. ¶¶
3-86
I'm interrested to learn what kind of evidence they think they have
in their exclusive claims on ELF, RCU, SysV init, ULS and headers. I Thus would
like to have a peek at the Gupta Declaration. (Gupta Aff. seems to be an error
(??), the rest of the memo talks about "Gupta Decl", no Gupta Affidavit is
mentioned in the footnote (4) on page 12 that explains the references.). I've
been able to find the Harrop Declaration
(http://www.thescogroup.com/ibmlawsuit/20040708_John_Harrop_Declaration_Final_1.
pdf)
But, call me ignorant, I had no such luck for the Gupta Declaration. I
would be most grateful if anyone could tell me where/how to find it.
Peter [ Reply to This | # ]
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| Authored by: Anonymous on Saturday, July 10 2004 @ 07:25 AM EDT |
Actually I believe the strategy of M$ (yes, I'm one of those "conspiracy
theory" followers) is multifold:
1. slow the adoption of Linux systems, especially high-profile, by introducing a
"legal incertainty"
2. "divide" the Open Source community
3. gain time for Longhorn, the ultimate lock-in machine
1: they do this by using SCO (obviously) to spread FUD and when an adoption is
considered, by ridiculously high price-cuts. This "resource", however,
will be depleted for them one day. Therefore: apply for as much patents as
humanly possible, in order to be able to create a new (and even stronger) kind
of legal incertainty in the future. SCO isn't stopping us from writing programs,
patents could.
2: they are already, to some degree, succeeding in this; the time you and I
spend analyzing and defending against SCO's attacks, is time one cannot spend on
programming or debunking patents, or...
Furthermore, the "agreement" with Sun will, without much doubt,
include elements to alienate Sun from the OS community.
They introduced Unix services for Windows as well. That could also fit in this
category.
3. Longhorn, by means of ridiculously high hardware demands, DRM/TCPA and
"broken" compatibility, will serve as the ultimate lock-in machine. No
doubt they have already made a few unholy alliances with the RIAA/MPAA/...
Also, Bill Gates said hardware would one day be next to free, so I wonder if
they're planning on subsidising system builders that install Longhorn only on
their systems. Hardware demands are artificially increased by M$ this way,
making lower-spec'd systems look like crap.
Oh and PJ, to get that bad taste out of your mouth: brush your teeth, it helps
(really).
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| Authored by: Anonymous on Saturday, July 10 2004 @ 09:13 AM EDT |
STATEMENT OF DISPUTED FACTS
...
13. It is undisputed that IBM
has contributed source code to Linux.
SCO's concept of facts is so
fuzzy that it's hard to tell whether their list is meant to be one of disputed
or undisputed facts. There are plenty of items in the list that I would have
thought were undisputed including the one (item 13) that they come out and say
is undisputed. Does anyone have a clue which they meant to say?
[ Reply to This | # ]
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- 13 = UNDISPUTED - Authored by: Anonymous on Sunday, July 11 2004 @ 01:38 AM EDT
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| Authored by: Anonymous on Saturday, July 10 2004 @ 10:50 AM EDT |
I'm watching this fiasco from germany. Here are my thoughts why this couldn't
happen in germany. IANAL, maybe a german lawyer can help out with real
expertise.
1) the loser pays all costs.
This makes nuisance lawsuits more expensive. But in order to make that work,
there must also be a limit to what the loser has to pay to the winner. And here
is: We have a BRAGO (Bundes Rechtsanwalts Gebühren Ordnung, i.e. "Federal
attorney fee regulation".) As I understood it, anybody is free to pay as
much as he wants to his lawyer, but if he wins a case, the losing opponent only
pays the federally regulated fee.
Now I think this is the reason why tort reform will go nowhere in the US. In
order to be fair, you'd need such a regulation too, and then there would be less
money to be made by lawyers. Attorneys here have a hard time negotiating
significantly higher fees than those determined by BRAGO.
Often times there is no clear loser. In that case, costs are split between the
parties. That way, both parties can lose from a stupily fought out lawsuit. IMHO
this is a strong motive to bring your case in such a way that it is a slam dunk
and leave out meandering accusations. This also fosters efficiency.
2) it's obviously easier to get a preliminary decision.
See what LinuxTag achieved. SCO GmbH had to shut up. This is not at all unfair,
because you can quickly appeal that preliminary ruling. SCO just chose not to,
probably because they then need to show some evidence, see 3), possibly also
4).
3) there is no "discovery".
You bring your motions, your exhibits, and maybe your witnesses, then there are
oral arguments and that is it. If you have no proof, then the thing is over. I'm
completely shocked and amazed what is going on during this "discovery"
process. Wow!
4) there is no "contingeny".
Once an american friend of mine had a legal dispute here and I went to the
lawyer with him. He asked the lawyer to accept a portion of the outcome if we
win and get nothing otherwise. The anwser of the lawyer was this:
This is not allowed in germany. He also thinks it is wise that it is not
allowed, because as a lawyer, he doesn't want to be party of the lawsuit. He
wants to be neutral, because a) it makes him a better lawyer and b) he wants to
be able to tell his client: "Stop here, going on will make you lose your
money (mine is not at issue, I'll get my BRAGO share anyway)."
Ok, this also makes lawyers lazy. But if I see those extremely lengthy
memoranda, to me these look in fact more like the rantings of an involved party
and less like professional legal manoevers. German lawyers hear that kind of
stuff from their clients too, but they should filter it and bring it to the
point. Poor judges who must read all that!
There are certainly problems in the german system too. For example, often times
one reads that in factual questions, judges blindly rely on the opinion of
court-appointed experts and that these are of poor quality. I figure this can be
a great frustration. But letting a jury of carpenters and housewifes decide
about code similarities?
Regards, and PJ, keep up the good work, we learn a lot!
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| Authored by: Anonymous on Saturday, July 10 2004 @ 11:50 AM EDT |
step back and pause
the vista of all M$ FUD is everywhere around the globe
the $56 billion is bait
M$ FUD makes perfect sense to M$ FUDmeisters
they think they have an airtight pitch backed by $s
ignore M$ and let the authorities deal with them
the M$ FUD is ultimately going to backfire
M$ is exposing just how proprietary SW companies operate
they are giving the world a first person account of munging
copying appropriating hiring experts away from other companies
Gates paid a real programmer to port Dartmouth BASIC
Gates bought DOS from a friend
Gates hired DEC RSX-11 experts to write NT
Gates is using FOSS to replace ALL their proprietary OS
Isn't it human nature for M$ FUD to blame their victims
Don't you feel deep pride in associating with the FOSS community
it is good for the soul to know that good people succeed so greatly
it is comforting to know that FOSS people would not be tempted to
stoop so low as proprietary SW companies because we are in it for
the benefit of the community as much as the money
Leave it to M$ to tempt politicians and the legal system to royally
screw it up and destroy the community
M$ is becoming the fifth horseman in society[ Reply to This | # ]
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| Authored by: minkwe on Saturday, July 10 2004 @ 01:50 PM EDT |
If the IBM contracts were the way SCO describes them, then they are illegal and
should be declared so by the judge.
Imagine the following (hypothetical) situation:
1. A week ago IBM licenced DTrace from SUN and added that code to AIX. Does SCO
have contractual rights to DTrace?
2. Sun Decides open DTrace to the public-domain. Does SCO have the right to sue
Sun for misappropriation of SCOs confidential source code?
Where should we draw the line?
Is it legal for a contract between two parties be intepreted in a way as to rob
a third-party of its property. If SCO is right, then everybody who has ever
licenced code for IBM to include in AIX has lost control of their code to SCO.
---
SCO: Your honor, they are trying to confuse us with the facts![ Reply to This | # ]
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| Authored by: Anonymous on Saturday, July 10 2004 @ 04:32 PM EDT |
> Minix was cleared by... (drum roll please) AT&T!
And Linux was cleared by Tanenbaum, the copyright holder of Minix. The
only grudge he holds against Linus is that Linux is too _different_ from Minix
:)
-Henrik[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, July 11 2004 @ 11:57 AM EDT |
Funny... SCO's seems to try to indicate that Tanenbaum was one of Linus
professors. However the two are both on record as never having even met -
Tanenbaum teach at a Dutch university, and Linus went to university in Finland.
This probably stems from the well documented (search Google groups for the
original) flame from Tanenbaum stating that he would likely have failed Linus if
he'd delivered Linux as a student work to one of his courses.
Vidar
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