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Lots of Activity in SCO v. IBM Land - SCO Says It Did Not Repudiate GPL
Thursday, December 02 2004 @ 10:01 AM EST

Lots of filings in the SCO v. IBM case are up on Pacer this morning. The overview: SCO says to the court: slow down. We need more time to do discovery before you rule on IBM's motion for partial summary judgment on the contract claims counterclaim.

What else did you think they would say? That they didn't repudiate the GPL?

Actually, that is exactly what they say in 342, their Opposition to IBM's Partial Summary Judgment Motion on Copyright Infringement. And they also have filed a sealed Memorandum in opposition to IBM's Motion for Summary Judgment on SCO's Breach of Contract Claims.

Oh, and in 342 they also say IBM "hacked" their website to get evidence of GPL violations, by bypassing password protection, and so have "unclean hands". There is nothing too ludicrous or too low for these venal folks to claim. It's all about smearing IBM in the media at this point, I gather. I recall that you did not need to bypass anything to download the Linux kernel from SCO's website. So I think we can assume this is the desperate last struggle of a dying company, caught in a GPL trap entirely of their own making, and trying anything and everything to get its foot out of the snare. Of course, SCO's position from day one seems to have been that if you use Linux, you must be a criminal. So now, IBM, poor thing, has been thrown into that category by SCO, who may now be certifiably insane, I would argue.

They still don't get the GPL, but one thing is for sure. We have come full circle. They are in the hilariously strange position of arguing that the GPL is valid and that is why they are innocent of violating it. So, for all you folks salivating at the thought that the GPL would be challenged in court, you lose. SCO has surrendered.

IBM opposes SCO's attempt to amend its complaint. It's sealed, because this has to do with the confidential material.

And the G2 filings are up now, and there is no complaint.

Here's the Pacer list:

11/30/04 337 SEALED DOCUMENT entitled: IBM's opposition to SCO's motion for leave to file a third amended complaint pursuant to FRCivP 15(a) and 16(b) (blk) [Entry date 12/01/04]

11/30/04 338 Motion by Intl Bus Mach Inc for leave to file overlength memo in opposition re: SCO's motion for leave to file third amd cmp (blk) [Entry date 12/01/04]

12/1/04 339 Motion by SCO Grp for leave to file overlength memo re: IBM's motion for summary jgm on breach of contract claims (blk) [Entry date 12/01/04]

11/30/04 340 Motion to intervene by G2 Computer Intel (blk) [Entry date 12/01/04]

11/30/04 341 Memorandum by G2 Computer Intel in support of [340-1] motion to intervene by G2 Computer Intel (blk) [Entry date 12/01/04]

11/30/04 342 Memorandum by SCO Grp in opposition to [233-1] motion for partial summary judgment on its counterclaim for copyright infringement (eighth counterclaim) (blk) [Entry date 12/01/04]

11/30/04 343 Motion by SCO Grp pursuant to Rule 56(f) in further opposition to IBM's Motion for Summary Jgm on SCO's Contract Claims (blk) [Entry date 12/01/04]

11/30/04 344 Declaration of Edward Normand filed by SCO (blk) [Entry date 12/01/04]

11/30/04 345 SEALED DOCUMENT entitled: DECLARATION of Todd M. Shaughnessy in support of IBM's opposition to SCO's Motion for Leave to File a Third Amended Complaint (blk) [Entry date 12/01/04]

11/30/04 346 SEALED DOCUMENT entitled: Memorandum in Opposition to IBM's Motion for Summary Jgm on SCO's Breach of Contract Claims (blk) [Entry date 12/01/04]

Is this not the most fun yet? SCO stands up for the legality of the GPL. I guess you could call that a retreat. As in, with their tail between their legs. This story never, ever gets boring. Well, maybe IBM isn't having as much fun as we are, just watching. It's never enjoyable to have your reputation smeared. I know. It's happened to me, and it really is both painful and infuriating. That SCO would be willing to level a charge of "hacking" tells me what kind of people we are dealing with here.

One thing is now clear -- the validity of the GPL is not going to be tested in this case. SCO's incompetence has shut the door to them being able to do that. Now, they are wrapping themselves in the GPL flag. They may think that will protect them, but that's because they *still* don't understand how it works. I would so love to be in the courtroom the day they finally do.


  


Lots of Activity in SCO v. IBM Land - SCO Says It Did Not Repudiate GPL | 264 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Lots of Activity in SCO v. IBM Land - SCO Says It Did Not Repudiate GPL
Authored by: Anonymous on Thursday, December 02 2004 @ 10:58 AM EST
" I would love to be in the courtroom the day they finally
do. "

In the year 2027 :)

[ Reply to This | # ]

OT links and such here, please
Authored by: rand on Thursday, December 02 2004 @ 11:01 AM EST
..

---
The wise man is not embarrassed or angered by lies, only disappointed. (IANAL
and so forth and so on)

[ Reply to This | # ]

Lots of Activity in SCO v. IBM Land - SCO Says It Did Not Repudiate GPL
Authored by: fredex on Thursday, December 02 2004 @ 11:01 AM EST
you know they never had a good plan to purse these suits, you could tell that
the minute Darl (et. al.) started blabbing in public. Any reputable firm with a
serious lawsuit would never allow such behavior, as it could readily compromise
their case.

re the GPL, SCO may well be "hoist by their own petard". Once again.
There is certainly ample public record of their statements that IBM can (and I
imagine WILL) introduce into the court record.

[ Reply to This | # ]

'hacking'
Authored by: nathan.sidwell on Thursday, December 02 2004 @ 11:13 AM EST
Is SCO implying that guessing the ftp password of an anonymous login constitutes
'hacking'?

[ Reply to This | # ]

Crow anyone?
Authored by: MajorDisaster on Thursday, December 02 2004 @ 11:14 AM EST
;-)

---
Death twitches my ear, "Live", he says "I am Coming."

--Virgil--

[ Reply to This | # ]

  • Crow anyone? - Authored by: Anonymous on Thursday, December 02 2004 @ 01:03 PM EST
    • Crow anyone? - Authored by: DL on Thursday, December 02 2004 @ 04:52 PM EST
SCO Says It Did Not Repudiate the GPL?
Authored by: surak on Thursday, December 02 2004 @ 11:26 AM EST
Huh?

In SCO's own words: "a party 'repudiates' a contract when it 'refuses to perform and communicates that refusal distinctly and unqualifiedly to the other party.'"

So, uh, exactly what is this tidbit on SCO's SCOSource Web page?

"To meet customer's needs, SCO has introduced the SCO Intellectual Property (IP) License Program to make binary run time licenses for SCO's intellectual property available to end users. The license gives end users the right to use SCO intellectual property contained in Linux, in binary format only. End users who purchase this license will be covered for their use of SCO's intellectual property in binary format in Linux distributions on the licensed system. The license applies to all commercial users of Linux."

While IANAL, it seems that his is clearly, outright, a violation of clauses 3 and 6 of the GPL. They are refusing to accompany source code and refusing to allow SCOSource Linux licensees to copy, modify, and/or distribute Linux under the terms of the GPL. They have, in essence, repudiated the GPL. As IBM is a copyright holder of code within Linux, they violated their license with IBM for that Linux code by distributing the Linux kernel in violation of clauses 3 and 6 of the GPL.

Are SCO's lawyers that clueless? (Nevermind, don't answer that.)

---
"And as long as they’re going to steal [software], we want them to steal ours. They’ll get sort of addicted..." --Bill Gates

"Just say no!" --Nancy Reagan

[ Reply to This | # ]

What happens if SCO would drop all lawsuits?
Authored by: boban on Thursday, December 02 2004 @ 11:27 AM EST
Hypothetically (if I spelled that korrektly) off course. If they back up now,
does that mean that IBM's counterclaims will disappear or the court process
continues?

IANAL, obviously.

Boban.

[ Reply to This | # ]

I said this about a year or so ago...
Authored by: pfusco on Thursday, December 02 2004 @ 11:29 AM EST
This is just too funny :)

---
only the soul matters in the end

[ Reply to This | # ]

Declaration of Edward Normand
Authored by: rsteinmetz70112 on Thursday, December 02 2004 @ 11:34 AM EST
The link doesn't work for me.

---
Rsteinmetz

"I could be wrong now, but I don't think so."

[ Reply to This | # ]

Go Go GPL
Authored by: Anonymous on Thursday, December 02 2004 @ 11:38 AM EST
"SCO stands up for the legality of the GPL."

Well.......this time. Just wait until next filing where they will argue that
the GPL is invalid in order to backup a different argument. We have never seen
them do that have we?

[ Reply to This | # ]

Step Right Up, Claim Your Transcription
Authored by: Steve Martin on Thursday, December 02 2004 @ 11:44 AM EST
I'll start the ball rolling here, I've just finished the TOC and Table of
Authorities from 342 (which I figure is gonna be the most tedious part), so
unless someone wants to share the load, I'll continue with that.

Anyone else? Please post here if you'll transcribe a doc so we don't duplicate
effort and waste typing.



---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports
Night"

[ Reply to This | # ]

Another SCO GPL violation.
Authored by: cananian on Thursday, December 02 2004 @ 11:46 AM EST
Note also that on paragraph 17 of page 10 (pdf page 17) of document 342, SCO
claims that "SCO's 'distribution' of any Linux products, even in this
limited fashion [ie making the source code available on their website], will
cease by the end of 2004."

HOWEVER, SCO claims that it sold a copy of Linux Server 4.0 on May 31, 2004
(paragraph 14, page 8). The GPL section 3b requires that the source offer be
"valid for at least three years".

Hence SCO is claiming in court documents that it intends to violate the GPL at
the end of this month -- even after it strenuously argued that the GPL is valid!

[ Reply to This | # ]

SCO probably understands the GPL
Authored by: kawabago on Thursday, December 02 2004 @ 11:52 AM EST
This is just another example of them saying in court whatever they need to say
to back their claims at the momment. Their tune will change as soon as the wind
does.

---
constructive irrelevance.

[ Reply to This | # ]

G2 Filings Improperly Joined?
Authored by: Anonymous on Thursday, December 02 2004 @ 11:54 AM EST
...the G2 filings are up now, and there is no complaint.

Maureen filed both her petitions all mashed together like that because she expects to be denied standing to intervene. If she had followed standard practice and petitioned for the right to intervene separately before demanding access to sealed documents, her whining would have been shut down too soon.

Imagine that she writes a column complaining about how the court won't let her participate in the case. All the blogging and discussion will be about what a gnat she is, or how she is the victim of an oppressive system, blah blah. In other words, poor, poor Maureen becomes the story and not the reporter. All the clicks will go elsewhere.

By filing this way, she will pretend that her petition to unseal the documents was heard and denied. She will write by the yard about how dark secrets are being kept, how the court is conspiring with IBM to hide evidence, how the public has a right to peek into board meetings, blah, blah. She will write in this manner despite the court's best efforts to explain that the petition to unseal has been neither heard nor decided. Maureen remains the reporter, and the clicks pile up.

Judge Wells should instruct G2's counsel to withdraw its motion as improperly joined, and resubmit a motion speaking to G2's standing to intervene only.

-Anonomous.

[ Reply to This | # ]

Linux officially in the clear according to SCO!
Authored by: Mark Levitt on Thursday, December 02 2004 @ 11:58 AM EST
Did anyone notice that the Linux kernel is now (with a slight bit of work) free
and clear from any copyright infringement claims, according to SCO?

The state in their IBM-342.pdf filling that SCO isn't violating the GPL because
they never attempted to collect royalties or license fees from anyone who got
Linux from SCO and that the only sold a license to people who got Linux
"from any other source".

So, their argument appears to be:
* IBM released the code under the GPL.

* SCO distributed that code in their Linux distribution along with their own
code.

* The GPL restrictions on them regarding IBM's code only apply to *their*
distribution, so they haven't tried to charge any license fee for people with
*their* distribution. Only people who got their code from someone else.

So, all we have to do is get someone with a legally obtained copy of SCO's Linux
Server 4.0 distribution to e-mail the kernel source package to Linus (which they
are legally allowed to do becuase those are the terms of the GPL). Then, Linus
can "merge" the SCO-distributed Linux source files with the official
kernel source and distribute it.

Now, everyone in the world using Linux is using a copy of the code SCO
distributed under the GPL (because they say in the filling that's how they
distributed it).

Hurray!

:)

[ Reply to This | # ]

IBM-342: Welcome back to bizzaro land.
Authored by: rand on Thursday, December 02 2004 @ 11:58 AM EST
So much for that good night's sleep I thought I was going to get last night. My own initial observations(as always, read the PDF and make your own conclusions):

If you don't make any modifications to GPL software you can charge any licensee fees you want, but if you make any modifications, you can't charge licensee fees.

Section 1 of the GPL allows copying and warrantee fees, but doesn't prohibit other fees so it's OK to charge for a license.

SCO never repudiated the GPL, only claims that it is invalid, void, and enenforceable. They also claim they never made an "overt communication of intention...which demonstrates a clear determination not to proceed with performance." They repeat the strange argument that the FSF is to blame for selectively enforcing the GPL. They also insist the GPL gives them permision for their actions, even though the GPL is invalid.

SCO didn't violate the GPL because it only charged license fees for it's own code. SCO's Linux licenses were actually UNIX licenses, even though they only apply to using Linux. SCO never mentioned Linux in any of its UNIX licenses, even when it did, sort of.

Best one yet:The GPL doesn't prohibit SCO from charging a licensing fees for GPL software that SCO did not provide to a customer. Did you get that? SCO maintains they while haven't ever charged their own customers a license fee (they gloss over whether their own customers need a free license), it's perfectly OK for them to require anyone using any software they didn't distribute to obtain a SCO license.

Does this ring a bell? Since the GPL doesn't specify a time period for compliance in the event of a breach, SCO's distributions of Linux after allegedly violating the GPL are allowed. Actually, it appears to be a good argument, and I hope DC, if it gets to that, will use the exact text in their case.

"IBM...missappropriated proprietary SCO code and contributed thousand of lines of that code into Linux." Since they have also openly agreed that any UNIX code written or modified by IBM is owned by IBM, by using "proprietary", meaning "owned by", instead of "protected" they are again accusing IBM of literal copying of UNIX code into Linux.

IBM improperly obtained evidence that SCO didn't provide in discovery. They don't maintain the evidence is false, or mention that it might contradict sworn statements SCO made in discovery.

IBM hacked SCO's ftp server. SCO contends the server is just for SCO customers -- does anyone think that IBM, one of the he biggest consumers of software in the world, never bought a copy of SCO Server 4.0?

There was a "bug" in SCO' ftp servers. We all know that the "bug" consisted of SCO allowing blank usernames and passwords. We also know that the "hacking" consisted of just hitting the "OK" button. We also know SCO didn't fix it for months after it was generally known. Those items weren't mentioned.

---
The wise man is not embarrassed or angered by lies, only disappointed. (IANAL and so forth and so on)

[ Reply to This | # ]

342 and 343 transcribed, thanks
Authored by: PJ on Thursday, December 02 2004 @ 12:06 PM EST
Just to let you know that we have both 342 and 343 transcribed already. The
g2 stuff we did yesterday, so that leaves only the requests to file overlength
memoranda.

[ Reply to This | # ]

RE: Declaration of Edward Normand
Authored by: Anonymous on Thursday, December 02 2004 @ 12:09 PM EST

Does he actually "declare" anything ?
It seems to be lots of legal argument stuff and "he said, she said"
stuff.

1. I am a member of BSF
2. This is in support of SCO's memo
3. I will explain stuff later
4. SCO has already explained, so I agree with them
5. SCO has deposed some of the witnesses ( isn't this already on record from IBM
in their comments about SCO being slow and SCO cancelling the depositions ?
6. SCO wants more names ( didn't they already agree somewhere that they had the
names ?)
7. Makes no sense - we want to talk to the programmers who can
implement/circumvent restrictions on licences - Huh ?
8. In march IBM gave us stuff, and then gave us depositions for OW & DF..
and the stuff in one contradicts the other. We think it should have been more
efficently handled . ( so what - you don't show any contradictions, or
references... just a claim that it seems daft - and your complaint is that it
wasn't efficient )
9. IBM has a declaration from Martin Pfeffer which they haven't given to us - we
think that he will win us the case so that is why IBM wont give us the
declaration
10. We asked Novell for stuff, and they gave it to us, but we need more time.
SCO will talk about this in other documents
11. SCO wants more time for more declarations/depositions
12. SCO wants more time for more declarations/depositions

Is this anything more than the usual - we want more time waffle....

It seems completely without fact or evidence to support the position - just more
speculative waffling on what may happen when SCO get more discovery.

Just more SCO whinging.

[ Reply to This | # ]

Question about the GPL
Authored by: Anonymous on Thursday, December 02 2004 @ 12:13 PM EST
Ok, ok, I know no one is going to give me official legal advice in here. I'm
just looking for someone who is knowledgeable about the GPL and copyright law,
generally, to give me a general answer.

Let's say I have two distict programs, both licensed under the GPL. Call them A
and B. I received them under the terms of the GPL. Now, let's say that, with
regards to program A, I take actions that invalidate/terminate my use of the
GPL. Does that only terminate the license for program A, while leaving the
license for program B still active? I would think that each program is licensed
individually, as each represents a seperate grant of license from different
copyright holders, yes?

I ask, because it occurs to me that, even if the court finds that SCO has lost
their GPL rights to the Linux kernel, they could still retain license under the
GPL to validly use/distribute any other GPL'ed program, yes? Do any of the IBM
counterclaims deal with IBM copyrights that are independent of the Linux kernel,
and for which SCO can validly claim that they didn't violate the GPL with regard
to those programs?

[ Reply to This | # ]

GPL Still Under Attack
Authored by: llanitedave on Thursday, December 02 2004 @ 12:39 PM EST
Even though SCO claims it has not “repudiated” the GPL, its arguments still
clearly constitute an ATTACK on the GPL.

They claim on page 2:
“The GPL does not prohibit a licensee from collecting a royalty or licensing fee
on verbatem (as opposed to modified) copies of GPL-licensed material.”

This is an absurd statement. If true, that would enable me to distribute an
unmodified Linux kernel and charge royalties for it, as long as I didn’t do
anything to it! No sane person would use this interpretation.

And of course, here they claim AGAIN that IBM has illegally put SCO’s code into
Linux, even after repeatedly refusing to show the code in question. If
(when)Kimball rules in IBM’s favor on the noninfringement counterclaim, this
particular motion will be void.


---
Of course we need to communicate -- that goes without saying!

[ Reply to This | # ]

This One's Easy
Authored by: mark_flanagan on Thursday, December 02 2004 @ 12:40 PM EST
Has anyone considered that IBM owns licenses to OpenLinux, UnitedLinux or some
other Caldera/SCO distro? They probably have licenses to UnixWare and Open
Server, too. It's a big company and they must test their products on different
distros and OSes. So hacking, even through a tough password, would be
unnecessary.

[ Reply to This | # ]

One thing is now clear -- the validity of the GPL is not going to be tested in this case.
Authored by: pfusco on Thursday, December 02 2004 @ 01:03 PM EST
Actually, it does look like the GPL will be tested.

In reading Sco's affirmative defenses, it seems that they are doing some serious challenges to what a copywrite holder may or may not do to invoke protection under the GPL as well as what 3rd party contributions may or may not do insofar as the charging of fees for putting in their own IP.

Sco is arguing that they were only charging for the (hehe) Unix code that was "improperly inserted" into Linux. I could see some interesting legal wranging comming up in the near future over that.

---
only the soul matters in the end

[ Reply to This | # ]

One thing troubles me
Authored by: Anonymous on Thursday, December 02 2004 @ 01:32 PM EST
SCO argues that the GPL doesn't prohibit them from imposing terms on people who have Linux, but didn't get it from SCO. Much as I hate to admit it, I think that is actually correct. By sending letters to people who got Linux from someone other than SCO, as far as I can see SCO did not violate the GPL. (They did violate the GPL by demanding that people who got Linix from them also needed a free license from SCO.)

But I think it's like saying, if I have a Ford dealership, and I sign contracts with people when I sell them cars, the contracts do not prohibit me from contacting people who bought Fords from some other dealership, and demanding that they send me money. And it's true, the contract doesn't prohibit it. Either basic decency or the fraud statutes may prohibit it, but the contract doesn't...

I find this rather offensive. Is there really nothing in the GPL that causes consequenses for behavior like this?

MSS

[ Reply to This | # ]

GPL Clarification
Authored by: sunnyfla on Thursday, December 02 2004 @ 01:33 PM EST
Ok...I am confused now.

I assumed up to this point that the whole point of the GPL
was to share modifications/improvements of GPL'd software
with the community at large. i.e. if you distribute gpl
code, you must also make the source available.

It seems that SCO is claiming that they only offered the
source to their customers, and IBM's action of downloading
the source from their website was illegal, presumably
because they are not a customer.

Is it true that if I offer to sell a GPL'd distribution to
someone, I am only required to provide the source code to
that person, and not the community at large?

How, then, do improvements/modifications benefit the
community without a willing customer a) purchasing the
modified code, and then b) choosing to re-distribute it
free?

--

Dennis

[ Reply to This | # ]

Anonymous ftp == hacking implies SCO is breaching GPL?
Authored by: Aim Here on Thursday, December 02 2004 @ 01:37 PM EST
Does anyone know if the SCO Linux copyright notices point people at their ftp
site if people want source?

It's just a thought, but if SCO has, in the past 3 years, put out one
binary-only copy of Linux (I'm guessing they have done so) then they are legally
obliged to distribute Linux source code to any third party who wants it, under
section 3 of the GPL (barring laws preventing them from distributing Linux at
all, such as counterclaim 8 of course)

Now SCO's anonymous ftp site is an ideal vehicle for such a distribution, but if
using that site is hacking, as SCO has now claimed in court, then they'd better
have in place some alternative means of Linux source distribution, otherwise
they're breaching the GPL. Their only real options are to a) show that they've
had some alternative method in place for distributing Linux source all along
(and, of course, the GPL notices for SCO Linux for the last 3 years or so better
back them up on this) or b) to accept IBM's counterclaim 8 that they aren't
allowed to distribute Linux and then lose.

Poor old SCO, in order to get out of this one, they're going to have to navigate
an incredible legal tightrope...

[ Reply to This | # ]

  • ..noose. ;-) N/T - Authored by: Anonymous on Thursday, December 02 2004 @ 09:46 PM EST
hacked the server? Ah, I get it now...
Authored by: Anonymous on Thursday, December 02 2004 @ 02:00 PM EST
You mean IBM forgot to put in their own email address as the anonymous ftp
password, as the server specifically demanded as a condition of logging in?

Yeah, that must be it. Book 'em Danno.

[ Reply to This | # ]

Lots of Activity in SCO v. IBM Land - SCO Says It Did Not Repudiate GPL
Authored by: Anonymous on Thursday, December 02 2004 @ 02:13 PM EST
We didn't charge license fees for Linux, just the Unix parts of Linux. That's
splitting hairs.

We didn't repudiate it, we just said it was unenforceable and void. How is that
not the same thing? While a lawyer might see the difference, a jury member
might not.

What I want to know is, how can SCO prove that any of the "millions of
lines" weren't inadverently put in by SCO themselves? They claim
contamination on IBM's part, what about the timeframe of when SCO was
contributing UNIX code to Linux code? How careful were they? Are they so sure
none of their own employees "borrowed" additional UNIX code?

And how can you "hack" an anonymous FTP server? I thought that was
the point of it being set up that way, to allow access to anyone. Maybe that's
why their site got "hacked" recently, they don't have a clue about
security.

And what has Darl been up to lately? We haven't heard a word from him since the
last teleconference. Maybe that was a condition of the legal fee cap, that Darl
shut up. "We'll only cap our fees if you cap McBride".

I think SCO regrets every having anything to do with Linux. I know Linux
regrets every having anything to do with SCO.

[ Reply to This | # ]

Next Step in Unsealing Documents?
Authored by: rsteinmetz70112 on Thursday, December 02 2004 @ 02:51 PM EST
What would be the normal next step in the G@ motion?

I gather it may be rejected by the court as improperly drafted, That should be
easy to fix.

Assuming it is filed properly, what happens next?

I assume SCOG and IBM get to reply. Then does G2 get to reply to that?

Can the judge rule without briefing?

What are the time frames for these responses?

---
Rsteinmetz

"I could be wrong now, but I don't think so."

[ Reply to This | # ]

Declaration of Michael Davidson
Authored by: rsteinmetz70112 on Thursday, December 02 2004 @ 03:07 PM EST
The SCOG motion makes reference to a declaration by Michael Davidson, I can't
seem to find it listed on any of the standard sites.

Anyone know where it is?

---
Rsteinmetz

"I could be wrong now, but I don't think so."

[ Reply to This | # ]

Lots of Activity in SCO v. IBM Land - SCO Says It Did Not Repudiate GPL
Authored by: odysseus on Thursday, December 02 2004 @ 03:52 PM EST
Sorry PJ, have to disagree with you here. The GPL will
have to be ruled on in this case. The GPL that SCO argues
in this filing they complied with is very different to the
one you and I know and love. SCO have chosen the GPL as
their defence, but they try to nitpick it apart (to the
point of suggesting some clauses are illegal), clause by
clause, as to why IBM's interpretation of it is wrong and
their wacko version is right. Kimball will have to make a
ruling on which interpretation is valid, which per-se
means a ruling on whether the license as a whole is valid.

They also appear to have attempted to set a trap for IBM
(albeit a rather clumsy one). They argue that they copied
the IBM "programs" "verbatim", therefore the "no fees
for
modification" clause doesn't apply, instead they can
charge what they like. They totally ignore that these are
not programs but in fact modules that would not work
outside aggregation with Linux as a whole, which they did
modify. If IBM makes this argument, then watch for SCO to
say IBM has now admitted to SCO's whole "aggregation
results in derivation" theory of copyright.

John.

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Patents?
Authored by: epcraig on Thursday, December 02 2004 @ 03:56 PM EST
I recall IBM's patent infringement countersuits being based on
SCO's repudiation of the GPL. Somehow I suspect that their
affirmation of the GPL in this filing is likely to be insufficient
defense.

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Lots of Activity in SCO v. IBM Land - SCO Says It Did Not Repudiate GPL
Authored by: kberrien on Thursday, December 02 2004 @ 04:18 PM EST
>It's all about smearing IBM in the media at this point, I
>gather.

Likely why O'Gara wants to unseal everything. Given her deduced (she always
gets the exclusives on SCO's new legal threats!) close contact to SCO - it would
seem she's been told there is embarassing IBM dirt, and has been directed to
reveal it!

<remove tin hat>

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Lots of Activity in SCO v. IBM Land - SCO Says It Did Not Repudiate GPL
Authored by: jaydee on Thursday, December 02 2004 @ 05:47 PM EST
OK So as far as I can see TSG are claiming:

1. TSG accept the GPL
2. IBM Licensed its code under the GPL.
3. We can distribute GPLed code as long as we follow the license conditions.
4. There is some TSG code incorporated illegally in the kernel.
5. We can charge a license for this because it is not licensed under the GPL.
6. We are only licensing TSG code and not any GPLed code.

So all TSG have to do now is:

1. Show that they hold valid copyrights to some code.
2. Identify the code with specificity.
3. Show that IBM contributed that code to Linux.

and that might just get them off this particular hook (CC8).

Failure at any particular point and the GPL drops on them like a ton of bricks.



---
Micro$oft. What's broken today?

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SCO thinks it owns JFS
Authored by: jrzagar on Thursday, December 02 2004 @ 07:30 PM EST
I found this cute little nugget in 342:
SCO determined to offer its UNIX License, beginning in August 2003, only because IBM had misappropriated SCO's proprietary source code and contributed thousands of lines of that code into Linux. Hughes Decl. Par. 6. Indeed, based on the limited discovery to date, SCO has determined that among the materials that IBM missappropriated and contributed to Linux is one of the very programs - the "Journaled File System" - for which IBM claims copyright in its instant motion.
Sounds to me like SCO is trying to claim that JFS is proprietary SCO source code...

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Lots of Activity in SCO v. IBM Land - SCO Says It Did Not Repudiate GPL
Authored by: John Hasler on Thursday, December 02 2004 @ 07:31 PM EST
> ...caught in the GPL trap...

Please don't use this phrase. It will be quoted out of context.

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SCO Says It Did Not Repudiate the GPL - If G2 can Intervene, why not GROKLAW?
Authored by: Zarkov on Thursday, December 02 2004 @ 07:45 PM EST
Surely the Groklaw archives contain an enormous amount of evidence now to prove
that SCO did in fact repudiate the GPL, and therefore could be used to show to
the court that this filing is at least perjury?

[ Reply to This | # ]

FSF Selectively Enforcing the GPL
Authored by: tredman on Thursday, December 02 2004 @ 09:32 PM EST
Let me preface this by saying that I don't believe FSF really has anything to do
with this, since they don't control the copyrights on the Linux kernel, so it's
not their responsibility to enforce squat. Somebody way back when reminded me
of this. Whoever you were, thanks for keeping me honest.

...however, with that said...

<soapbox>
SCOX makes the argument nonetheless that FSF selectively enforces the GPL. Even
if it were true, could you blame them? Even if only a few percent of the
infrigement claims filed had to deal with a SCOX, funds for the FSF would dry up
mighty quick. While being expected to protect your property, there's only so
much you can do with a bunch of delaying, fence-hopping squids like SCOX.
</soapbox>

Okay, medication's kicking in. I'll quiet down now.

Tim

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No need for "hacking" - STOWELL ADMISSION
Authored by: Anonymous on Thursday, December 02 2004 @ 10:33 PM EST
IBM did not need to "hack" (that is SCO's characterization of IBM accessing a publicly available Internet site -- not mine) to know that SCO is distributing Linux... SCO told everybody that they are doing so, and intended to continue to do so.

For example (I believe there are also similar quotations in other articles by Chris Sontag and possibly Darl McBride).

Computer Weekly - BLAKE STOWELL - 29 September 2003
SCO has not sold the SCO Linux software in question since 12 May, but the company continues to distribute it via the internet to honour existing support contracts, said SCO spokesman Blake Stowell.

Stowell disputed the idea that SCO could no longer distribute Linux. "We're the copyright holder for the core Unix operating system. If we want to charge someone a licensing fee for using our copyrighted software that's gone into Linux, then we have that prerogative," he said.

"If we want to continue to distribute Linux to our existing customers, we can do that because we own the copyrights on that Unix software."


Quatermass
IANAL IMHO etc

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ALL the things SCOSource license isn't
Authored by: jog on Thursday, December 02 2004 @ 11:16 PM EST
Pretty well leaves only "obtaining funds under false pretenses".

jog

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Lots of Activity in SCO v. IBM Land - SCO Says It Did Not Repudiate GPL
Authored by: 1N8 M4L1C3 on Friday, December 03 2004 @ 02:57 AM EST
PJ observes:

So I think we can assume this is the desperate last struggle of a dying company,
caught in a GPL trap entirely of their own making, and trying anything and
everything to get its foot out of the snare.

After deliberating the above, something came to mind:

When limbs are snared, wild animals will chew off the limb in question - leading
one to question how long SCOX's shareholders will wait before they chew off the
"limb" [read "management team"] that stepped into this
snare.

...food for thought....


---
On the 7th day, Linus saw that which he created and it was good... ...on the
8th day SCO litigated.

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Letters to Congress
Authored by: Anonymous on Friday, December 03 2004 @ 11:51 PM EST
I wrote letters to all my Congress folk shortly after SCO sent their mass
mailing to Congress. I would like to send them another letter letting them know
that SCO has told the court something quite different than they told Congress.
Would someone or somefew help me get started by posting an appropriate summary
or links thereto that I may adapt?
Thank you in advance ...

[ Reply to This | # ]

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