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| IBM's Addendum E: An Illustration of the Absurdity of SCO's Contract Claim |
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Monday, March 19 2007 @ 08:00 AM EDT
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Here's Addendum E [PDF] to IBM's Redacted Reply Memorandum in Further Support of its Motion for Summary Judgment on SCO's Contract Claims (SCO's First, Second, Third and Fourth Causes of Action) [PDF] as text, thanks to Groklaw member caecer. It's titled, "An Illustration of the Absurdity of SCO's Claim" and it illustrates the result of applying SCO's contract claim to all the other Unix SysV licensees apart from IBM. Here's the opening: SCO’s contract theory would lead to absurd results, not only for IBM, but potentially for the thousands of other UNIX System V licensees. If SCO were correct that the entire Dynix product is a “Derivative Work” of Unix System V, the possible repercussions for UNIX-related technologies would know no practical bounds, and SCO would be entitled to a windfall of outrageous proportions. Would you like SCO to control the internet? According to its contract theory, the result, IBM says, would be "SCO would be able to claim control over the entire internet and every internet-enabled device in existence, such as: cell phones, Blackberry devices, network hardware, and even some space satellites." Here's IBM's original Memorandum in Support of its motion for summary judgment on these claims, and here's SCO's memo in opposition. If someone could OCR the Reply Memorandum for me, #981, I'd appreciate it. It's humungous, 111 pages.
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ADDENDUM E
An Illustration of the Absurdity of SCO’s Claim
SCO’s contract theory would lead to absurd results, not only for
IBM, but potentially for the thousands of other UNIX System V licensees.
If SCO were correct that the entire Dynix product is a
“Derivative Work” of Unix System V, the possible
repercussions for UNIX-related technologies would know no practical
bounds, and SCO would be entitled to a windfall of outrageous proportions.
In its summary judgment papers and elsewhere, SCO has claimed that it
has the right to control non-System V material contained within an
alleged “Derivative Work” when such material is adapted for
use in a new work containing no System V code. For example, SCO has
claimed that it was improper for IBM to contribute to Linux certain RCU
material created entirely by Sequent software developers. The RCU
material contains no code copied from, or derived from, System V code,
yet since it was adapted to work as part of the Dynix product, SCO
claims that it controls RCU. (IBM Ex. 3 ¶¶ 144-166.) The
diagram below shows SCO’s alleged contractual basis for claiming
control of RCU if all Dynix is a “Derivative Work”:
1
As demonstrated, SCO’s theory is one of guilt by association.
Because RCU technology was implemented in Dynix, SCO claims that it may
control RCU (by preventing IBM from disclosing it to non-licensees)
because of its fortuitous inclusion in an operating system product that
may include some System V-derived code. Notably, SCO does not accuse
IBM of having engaged in behavior that the Agreement actually
contemplates, such as misuse of the actual Unix System V code.
While SCO’s theory has bizarre ramifications for IBM’s use
of its own intellectual property, some of the most absurd results of
SCO’s theory become apparent when applying it to the creations of
other System V licensees, past and present. Consider the case of TCP/IP
(Transmission Control Protocol/Internet Protocol), a technology first
widely implemented as part of the BSD operating system, which at the
time included licensed AT&T UNIX material.
1
(IBM Ex. 645 at 37-40.) TCP/IP eventually was removed from the
AT&T-licensed UNIX system and thus understood to be beyond AT&T’s
control:
With the increasing cost of the AT&T source licenses, vendors that
wanted to build standalone TCP/IP-based networking products for the PC
market using the BSD code found the per-binary costs prohibitive. So,
they requested that Berkeley break out the networking code and utilities
and provide them under licensing terms that did not require an AT&T
source license. The TCP/IP networking code clearly did not exist in 32/V
and thus had been developed entirely by Berkeley and its contributors.
The BSD originated networking code and supporting utilities were
released in June 1989 as Networking Release 1, the first freely
redistributable code from Berkeley. (IBM Ex. 645 at 40-41.)
2
Under SCO’s contract theory, the entirety of the BSD operating
system product in which TCP/IP was first implemented, including TCP/IP
itself, would be a “Derivative Work” subject to SCO’s
control. As such, SCO could control TCP/IP as it now seeks to control
IBM’s RCU technology. Since the entire internet is built upon
TCP/IP, the code, methods and concepts of which must be known to
internet programmers in order for the internet to function, SCO would be
able to claim control over the entire internet and every
internet-enabled device in existence, such as: cell phones, Blackberry
devices, network hardware, and even some space satellites.
2
The hypothetical TCP/IP claim SCO could make under its contract theory
is diagrammed below:
As this illustration should make clear, SCO’s contract theory, if
accepted, would lead to absurd results.
3
1
Although Berkeley did eventually create a version of its product
unencumbered by AT&T UNIX licensing restrictions, the version of
BSDI’s “BSD” operating system in which TCP/IP was
first implemented was based on AT&T UNIX code. (IBM Ex. 645 at40.)
2
See, e.g., http://www.starband.com. SCO is aware of the potential scope
of its claims, as it in fact argues in its opposition to IBM’s
Tenth Counterclaim that material it purports to control is important
because the removal of it, “would make the World Wide Web grind to
a halt”.(DJ Opp’n Br. at 66.)
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| Authored by: WhiteFang on Monday, March 19 2007 @ 08:25 AM EDT |
If needed. :-D
---
SCO's "two wrongs make a right" argument is untenable as a matter of law and
common sense. - IBM GPL Reply Brief Redacted.[ Reply to This | # ]
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| Authored by: WhiteFang on Monday, March 19 2007 @ 08:30 AM EDT |
Clickies if you got'em. Be sure to follow the html examples in the reply dialog.
And don't forget to turn on HTML mode!
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SCO's "two wrongs make a right" argument is untenable as a matter of law and
common sense. - IBM GPL Reply Brief Redacted.[ Reply to This | # ]
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| Authored by: WhiteFang on Monday, March 19 2007 @ 08:35 AM EDT |
I love how IBM forestalled SCOX's possible counter argument of "but that's
not what we mean" {in terms of absurdity} by the simply expedient of
throwing SCOX's words back in footnote 2.
Of course, SCOX sees no absurdity so long as they get to rake in oodles and
oodles of money they didn't earn and don't deserve.
---
SCO's "two wrongs make a right" argument is untenable as a matter of law and
common sense. - IBM GPL Reply Brief Redacted.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 19 2007 @ 08:45 AM EDT |
I fear that now IBM's lawyers are overstating their case. BSD TCP/IP code is
widespread, yes, but there are plenty of independent TCP/IP implementations out
there. I've written two of them. MS used to use a Berkeley-derived TCP/IP in
some of their products, but reportedly has replaced it with an in-house-written
one. I don't know whether Linux's current TCP/IP code has a BSD heritage;
perhaps someone more knowledgeable about Linux history could reflect on
that.
The specifications for TCP/IP are publically available. There are
even books (Comer and Stevens, for example) that are practically guides to
roll-your-own TCP/IP stacks. Implementing TCP, in particular, is an excellent
exercise in discipline -- it would be a great exercise for every programmer to
go through the process. (It teaches you not to cut corners. Every possible
error case will, at some point, arise. If you cut corners, your code will fail
when it shouldn't.)
Does IBM actually know that a Blackberry has
Berkeley-derived TCP/IP in it? It might not.
[ Reply to This | # ]
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- But there are lots of independent TCP/IP implementations - Authored by: rsteinmetz70112 on Monday, March 19 2007 @ 08:56 AM EDT
- But there are lots of independent TCP/IP implementations - Authored by: Anonymous on Monday, March 19 2007 @ 08:57 AM EDT
- But there are lots of independent TCP/IP implementations - Authored by: jmc on Monday, March 19 2007 @ 09:01 AM EDT
- But there are lots of independent TCP/IP implementations - Authored by: Mad Geek on Monday, March 19 2007 @ 09:03 AM EDT
- But there are lots of independent TCP/IP implementations - Authored by: Anonymous on Monday, March 19 2007 @ 09:05 AM EDT
- But there are lots of independent TCP/IP implementations - Authored by: tiger99 on Monday, March 19 2007 @ 09:12 AM EDT
- Your TCP/IP implementations ALSO belong to tSCOg ... - Authored by: bbaston on Monday, March 19 2007 @ 09:40 AM EDT
- You've missed IBM's argument - Authored by: gnusensibility on Monday, March 19 2007 @ 09:51 AM EDT
- I fear it is SCO that has overstated its case - Authored by: PJ on Monday, March 19 2007 @ 09:58 AM EDT
- BSD Sockets - Authored by: kyfung on Monday, March 19 2007 @ 10:19 AM EDT
- But there are lots of independent TCP/IP implementations - Authored by: JamesK on Monday, March 19 2007 @ 10:37 AM EDT
- Not "just" TCP/IP - Authored by: Sunny Penguin on Monday, March 19 2007 @ 10:53 AM EDT
- I doubt that - Authored by: Anonymous on Monday, March 19 2007 @ 11:25 AM EDT
- The origin of TCP/IP in Linux - Authored by: Anonymous on Monday, March 19 2007 @ 11:38 AM EDT
- But there are lots of independent TCP/IP implementations - Authored by: Anonymous on Monday, March 19 2007 @ 11:50 AM EDT
- An Alternative to TCP/IP? - Authored by: Anonymous on Monday, March 19 2007 @ 03:03 PM EDT
- Linux RCU isn't the same code as Sequent RCU either - Authored by: Anonymous on Tuesday, March 20 2007 @ 02:15 AM EDT
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| Authored by: John Hasler on Monday, March 19 2007 @ 09:03 AM EDT |
The last illustration is wrong. There is no SysV in BSD: just 32V.
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IOANAL. Licensed under the GNU General Public License[ Reply to This | # ]
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| Authored by: Jude on Monday, March 19 2007 @ 09:49 AM EDT |
How does SCO plan to attract developers to work on their platforms when they
make such wide-reaching IP claims? I would never create product that ran on a
SCO platform because I'd be afraid that SCO would turn around and claim they
owned the product.
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 19 2007 @ 10:26 AM EDT |
Why would the fact that if the claim would be valid it had widespread
ramifications be of any influence on the question whether or not the claim is
true?
I'm playing devil's advocate here, but exactly what purpose does this addendum
serve except play on sentiments and not on legal issues?[ Reply to This | # ]
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| Authored by: giskard on Monday, March 19 2007 @ 10:34 AM EDT |
I'm sorry that this is so juvenile, but i just have to say it.
all your TCP/IP are belong to me![ Reply to This | # ]
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| Authored by: PTrenholme on Monday, March 19 2007 @ 10:48 AM EDT |
after all, if the SCO theory is correct, clearly every computer system is
based, fundamentally, on the methods and concepts of a computer
system.
And IBM holds many patents and copyrights to lots of
methods and concepts related to computer systems.
So, assuming the SCO
premise, it follows that “all your computers belong to IBM,” and,
ipso facto, SCO is out of business, and IBM now owns the whole
world.
So, don’t you think that IBM’s legal staff may have
missed a great opportunity here? At least they should have files a counter-claim
for all of UNIX based on SCO’s theory, eh? ---
IANAL, just a
retired statistician [ Reply to This | # ]
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| Authored by: jdg on Monday, March 19 2007 @ 10:58 AM EDT |
It seems to me that there is an additional line of argument. Anyone else with
this same contract language could construct a string of licenses that form a tar
baby ring that would result in overlapping and conflicting claims. Even if
SCOg's theory is 'correct' it would have to be wrong because it would gridlock
the courts and another basis than the contract would be needed to break the many
irreconcilable claims.
---
SCO is trying to appropriate the "commons"; don't let them [IANAL][ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 19 2007 @ 11:40 AM EDT |
| This is serious. [ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 19 2007 @ 11:47 AM EDT |
Isn't there supposed to be a "meeting of the minds" in the process of
creating a contract? And, further, isn't there an affirmation of that notion in
the subsequent actions (and inactions) of the parties thereafter?
Is it even reasonable in the wildest stretch, that this outcome is what the
parties to the contract actually intended at the time?
This is total nonsense on its face and how SCO could get this far is simply
amazing.
[ Reply to This | # ]
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| Authored by: Winter on Monday, March 19 2007 @ 11:48 AM EDT |
Remove parent SPAM N/T
---
Some say the sun rises in the east, some say it rises in the west; the truth
lies probably somewhere in between.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 19 2007 @ 11:53 AM EDT |
I would think there can be no middle ground here. Either
you buy into SCO's theory and are then forced to bargin
with them, or decide it is totally wacko from a legal
stand point and boot SCO and its lawyers out of the
court room and down the front steps.
[ Reply to This | # ]
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| Authored by: Illiander on Monday, March 19 2007 @ 11:59 AM EDT |
| I hit one of the links, lot's of porn ads [ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 19 2007 @ 12:04 PM EDT |
| Who'll be the first to spin it?
Headline:
IBM admits SCO
could control Internet; SCO stock skyrockets [ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 19 2007 @ 12:05 PM EDT |
stupid bad user , must be scoing.
er trolling[ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 19 2007 @ 12:06 PM EDT |
it asks you to allow a certificate from some site who cares if its spammed in
like htis dont go[ Reply to This | # ]
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| Authored by: cricketjeff on Monday, March 19 2007 @ 12:19 PM EDT |
Appears to be an account created today specifically to spam the site. Hasn't
Darl got anything better to do?
(PS that last bit is a JOKE)[ Reply to This | # ]
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| Authored by: DaveJakeman on Monday, March 19 2007 @ 12:40 PM EDT |
...they come back to bite you in the bum.
I hope SCO hate being bitten as much as I enjoy watching them get bit.
---
I would rather stand corrected than sit confused.
---
Should one hear an accusation, try it on the accuser.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 19 2007 @ 12:54 PM EDT |
I know I'm going to get shot for this, but the RCU example was actual code
modified and copied to another OS. The TCP/IP example is not of code being
copied, but of a (standardized) protocol being implemented independantly by
others based on public documentation.
Ofcourse, under SCO's "methods and concepts" theory, in which those
can be copyrighted, it's the same thing. But to all of us living in reality,
these two cannot be compared in the way they are being done in IBM's document.
You've got to admire how IBM managed to make SCO's "methods and
concepts" theory back-fire. :)[ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 19 2007 @ 01:14 PM EDT |
As pointed out above, MS used a BSD TCP/IP stack in early versions of NT. That
means, under SCOX theory, that all versions of Windows from NT 3 forward are
really derivative works, and are really owned by SCOX. Imagine how many
bazillions of dollars they could sue MS for? If that's the case, does that mean
that MS would be funding, as some would suggest they've already been doing,
litigation against themselve?
I guess it also means they could completely revitalize their SCOSource program
by sending out extor^H^H^H^H^H licensing letters to every man, woman, and child
in North America. Why, even if only 0.0001% of the suck^H^H^H^H potential
licensees paid up, they'd have enough revenue to keep things locked up in court
well past Unix millenium.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 19 2007 @ 01:56 PM EDT |
http://www.linuxformat.co.uk/murdockint.html
Ian Murdock founded Debian GNU/Linux nearly fifteen years ago, and today it
provides the foundations for many well-known distros such as Ubuntu and Knoppix.
LXF caught up with Ian, who currently chairs the Linux Standards base, and asked
him about Debian politics, leadership and the rise of Ubuntu...
[ Reply to This | # ]
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| Authored by: Simon G Best on Monday, March 19 2007 @ 01:59 PM EDT |
Hang on, I think I must be missing something. (It would not be at all
surprising if I am missing something here, as I haven't been following this
stuff in sufficient detail to be sure that I'm not missing
something.)
If, as IBM says The SCO Group says, System V licensees are
contractually bound to treat each and every part of a derived work as being
effectively controlled by The SCO Group, then would it really necessarily follow
that The SCO Group would control everything? Is IBM's reductio ad absurdum
argument actually correct?
Let's suppose, for a moment, that IBM (or any
other System V licensee) is bound, by contract with The SCO Group, in the way
IBM says The SCO Group says. Let's also suppose that IBM took part of a derived
work and put it in some other, third party's piece of software, without The SCO
Group's permission. Let's call that part, "part X". Let's suppose that part X
does not itself contain any System V, and would not normally (if it wasn't for
that contract) be regarded as a derived work of System V. If I understand
correctly, IBM is saying that The SCO Group's theory says that IBM would then be
in breach of that contract. Fine so far.
But how would that third party
be bound in the way IBM says The SCO Group's theory implies? IBM would be in
breach of contract, but that third party wouldn't be bound by that contract
anyway. The SCO Group would have no control over that third party's
subsequent use of part X. This is still assuming that the theory IBM attributes
to The SCO Group is correct, and assuming that I've understood IBM's argument
correctly.
What I fail to see, assuming that the theory IBM attributes
to The SCO Group is correct, is how The SCO Group would then control everything
in the way IBM says the theory implies.
Having said that, it occurs to
me that if the theory involves copyrights in part X being held, at least in
part, by The SCO Group, as a result of the System V licencing contract,
then the theory would imply The SCO Group's control of everything
containing things like part X. It would be a matter of IBM transferring, or
sharing, copyright in part X with The SCO Group. Is that what I was
missing?
What am I missing? Or is IBM arguing that the theory they're
attributing to The SCO Group implies an absurdity it doesn't actually
imply?
---
"Public relations" is a public relations term for
propaganda. [ Reply to This | # ]
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| Authored by: sonicfrog on Monday, March 19 2007 @ 04:29 PM EDT |
| Three days below
$1.00, twenty-eight more to go! [ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 19 2007 @ 04:50 PM EDT |
I am not sure this one discourages SCO in any way.
They are probably high-fiving, for the idea of controlling all of TCP/IP. If
anything they will get into court, and state
: yes, we control all of TCP/IP, but we let it pass due to our magnanimity.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 19 2007 @ 04:59 PM EDT |
Has anyone seen IBM rebut that absurdity uttered by SCO's lawyers in the
transcript the other day? They're usually so thorough, I assume I've missed the
rebuttal, but I should hope they'd nail down a softball like that, especially
given that Linux, SFAIK, does NOT include STREAMS and only SCO's distro ever
did.
Nor does it need JFS, for that matter, or any of the other technologies SCO
talked about. Most people seem to use ext3, anyhow, and there's a lot of buzz
about ZFS which sounds really cool to me, especially if it can deliver on all
the promises I've heard made.[ Reply to This | # ]
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| Authored by: sonicfrog on Monday, March 19 2007 @ 06:14 PM EDT |
| Ooops. Should have looked like this: ... ... yes, but Forbes might! [ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 19 2007 @ 07:33 PM EDT |
While I like the pictures, I think IBM is overstating SCOs current case. While
SCO was indeed initially claiming to own "millions of lines" of code
in linux, which is why we are all here, its claim is now reduced to a very weak
argument that IBM may have violated the fine print of a contract. In order to
argue even this SCO is forced to very creatively interpret the wording of the
fine print in ways clearly not contemplated by any of the original parties to
the contract. They are not going to win this way. The only reason they seem to
still be fighting is out of a vindictive and malicious desire to hurt IBM and
burn all of their assets before they inevitably lose.
Under SCOs argument, even if it were true that contributing RCU code to linux
was in violation of the contract (which it isn't as the court will soon rule),
this would be a matter between IBM and SCO. Users of linux have a valid license
to use RCU code granted by the copyright holder which is IBM. We don't need
SCO's permission because SCO doesn't own this code and has admitted as much. SCO
has no claim on users of linux at all at this point.
Look now at the TCP/IP analogy. SCOs claim would be against the university for
supposedly violating its contract. SCO would have no claim against blackberry or
other users of the TCP/IP code who have a valid license from the copyright
owner. Promises the copyright owner may have made to others about who they would
license their code to are irrelevant.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 19 2007 @ 10:08 PM EDT |
I hope you're getting better PJ, get plenty of rest and don't rush back too
soon!
Would it be a good idea sometime down the road to set up a "Best of
Groklaw" page that highlights say, what you feel are the ten best or the
most significant articles that you've written? With over 3,000 articles in the
past four years, that may sound impossible to do, but it may be valuable to
people who don't visit on a daily basis. I think there are important articles,
like this one, that get scrolled off the front page too soon. I'd also nominate
the USL/BSD settlement article to be on this summary page.
Take care![ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 20 2007 @ 06:12 AM EDT |
I've been looking through IBM's reply in further support and can't find a
reference to this addendum. I was wondering where it fit in context. What
(nonsense) in SCO's reply was it rebutting?
Is this new or would SCO have seen it in discovery or an expert report?
Did IBM sneak this in by putting it in their rebuttal rather than the initial
memorandum in support of the motion?
Since IBM didn't refer to it in the hearing, SCO would have had to bring it up
there to refute it. Might IBM have been hoping SCO would raise it? How would
IBM have used that?
Why did IBM choose to use Blackberry as an example instead of, say, MS
Windows?
[ Reply to This | # ]
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