This is the end for SCO

[Wraith]

--"but my gut reaction is that SCO is right and will prevail in the end if IBM has copied UNIX and put it in AIX."

That's the problem, this is incredibly unlikely. IBM is very good about this sort of thing, and has more experience than probably anyone else in the field at dealing with copyright issues like this. Their linux and AIX teams are completely seperate (as are several other teams they've got internally). This is so strict that even if one group finds a bug in a project that both are working on (say, one being a clean-room implementation), they can't tell the other group about it.

--"SCO did not start any of this until Microsoft gave it a big infusion of cash."

I think their initial push was before that, and was either an attempt to get IBM to buy them out or part of a pump-and-dump stock scheme. Microsoft was quick to take advantage of their actions, however.

--"some individuals (correctly) labelled this FUD to be a pump-and-dump scheme."

They've been doing a lot more than just, this though. A number of people have been commenting on someone "painting" the stock (inflating the price just before close or after open to make the stock look better in the papers than it's really doing), and it's really interesting to see what kind of bonuses the execs are getting. Not to mention their stock sales (which started after they started all this lawsuit business).

--"SCO allegations:"

No, people have been digging on this for a while. There's only one interpretation that really makes sense.

A while ago IBM bought a company called Sequent. This company developed some of the multi-processor code (I think most of the stuff SCO ever specifies). This was apparently developed to run on SYSV, but was not part of the SYSV package that Novell bought (ie. independent development on the kernel). SCO seem to believe, for some reason, that anything developed for SYSV belongs to them, even if they never had a hand in developing the new code. This seems to be the only thing they've got going for them, and needless to say, IBM disagrees with this interpretation of their contract.

--"When Novell transferred its UNIX business SCO, it apparently retained only the copyrights and patents."

No, Novell retained a number of other rights. SCO was simply acting as a middleman on the licensing issues; they got a percentage of the license fees, but it was still up to Novell to say yes or no. Novell also retained the right to block SCO from revoking licenses, something they did after SCO tried pulling IBM's license (note that they had been telling SCO before then that they, Novell, would allow SCO to pull this stunt).

--"It appears that IBM is in a world of hurt. "

IBM is fine. SCO is about to become a smoking crater in the ground. The Canopy Group may well be close to this fate as well. IBM's countersuit is digging into the various funding and FUDding SCO has been getting and spouting. There's a lot of potential collateral damage here.

Note for those actually interested in this case, there's a very good resource called Groklaw that covers this trail in great detail.

Wraith
"Hello. My $NAME is ~inigo-montoya. You killed my process. Prepare to vi."
-- The Unix's Bride

[Kuciwalker]

Originally posted by Urban Ranger
Ned, have you perfected the art of saying precisely nothing?

No; sometimes he fails and accidentally says something

[Q Classic]

? where are you getting this conclusion from? what sources, out of curiosity?

i've been following groklaw, mostly, which, although it's partisan on ibm's side, has been punching huge holes in sco's arguments. i've been avoiding mainstream press, because it's been my experience that not only are they at least two weeks behind the edge, but they also get details wrong.

the key issue between sco and novell as to whether sco can cancel the contract ibm has resides with amendment x to the purchase contract. it can be interpreted both was, unfortunately.

the big issue which is hurting sco's credibility is their refusal to show any proof; what proof they have shown has been quickly shown as not proof at all; the executives frequent remarks which do nothing but hurt their claims by being more and more provocative and less and less grounded.

what's worse for sco is that while initially they made this suit a contract dispute with ibm, they immediately proceeded to try and damage linux in any way imaginable. they're now trying to go after bsd as well--and apple probably won't be too hot about that, seeing as darwin, the chassis for mac os x, is freebsd based.

GPL as unconstitutional. granted, SCO has a lot to gain if it can toss the gpl out; first, it will have invalidated the copyrights to virtually all code written by anybody who used it, sending it all into the public domain for them to use. unfortunately, SCO itself has distributed software and actually continued to do so after its lawsuit was filed under the GPL. as late as october of this year, linux was availible for download from sco servers.

[Q Classic]

you'll also be interested to note another thing which is adversely affecting sco's credibility.

earlier this year, they claimed they were suffering from ddos attacks against their servers. suspiciously, those attacks kept business hours. even more suspiciously, when people called their tech support department, they said that their website was down for maintenance. and most suspicious of all? their isp didn't notice a thing.

or how about this: darl mcbride apparently has had threats on his life. he has therefore hired a private security detail. however, when questioned about this, the local police department stated they'd received no word from darl mcbride or sco about any such threat, nor had any other governmental agency. even more curiosly, darl mcbride, after hiring his security detail, then went and told pretty much the whole known world which hotel he was staying at.

something does not compute.

[Ned]

My post depended upon a lot of assumptions about the nature of the deal between Novell and SCO. If anyone has a link to a copy of that deal (which I would doubt is publicly available) it would clear a lot up about the nature of SCO's case.

Clearly, though, SCO is exaggerating a bit about what it got from Novell if all it got was sublicensing rights with no real right to enforce anything.

Just a couple of questions, though. Why does IBM have or even need a license from SCO if nothing of AIX contains UNIX V.

Second, did IBM actually say it would contribute AIX code to Linux? Was it careful to distinguish code that it wrote from that which was licensed from third parties if it did?

[Mr. Harley]

Ned, your question reference IBM contributing code is the crux of the lawsuit. As other posters noted, IBM has been very careful to attempt to keep their different divisions seperate. However, there is a certain commonality in their Unix/AIX code and portions of what it contributed to Linux.

The problem for SCO is that the Linux community has kept very careful documentation of who contributed what. Since Unix is used primarily by IT professionals, some of whom have been involved also in Linux developement, plus many of them may have attended the same universities, there are all kinds of issues as to who wrote what, and when.

SCO will not supply any of their data. This makes them highly suspect, not just to me but the courts. Since their Unix ownership/licenses come from a series of takeovers/mergers/sales, their own documentation is probably very suspect. Their actions confirm this. I had read about SCO's management using the lawsuit to inflate prices, I hadn't heard about their stock sales (I hadn't researched it either). Coincidentally, they had best be careful if this is the case, Mr. Spitzer in NY is not the complacent SEC, and the stock sales combined with their other actions could be criminal.

I will rephrase the Microsoft conspiracy/connection statement. SCO is a stalking horse for MS. SCO greatly increased in litigation after the infusion of cash by MS. Okay, legally it's not a conspiracy. MS did not collude with SCO. But if MS found a company committed to attacking the Unix/Linux communities, with a CEO already committing his company down that path (as the IT community is so pissed that they have alientated large numbers of companies and professionals in the IT field, then it would make sense for MS to sign a very lucrative contract infusing cash to SCO. Anything that slows the spread of Linux is good for MS. I have always stated (not here, but in discussion with friends) that Bill Gates is a brilliant businessman, understanding exactly how far he can push/manipulate/abuse the legal system. The SCO constract is totally consistant with his past actions.

[Q Classic]

ned:

novell-sco asset purchase agreement schedules
amendment 1
novell-sco asset purchase agreement

ibm-sco-novell amendment x
comments on amendment x

[Q Classic]

a choice quote:

"Accordingly, pursuant to Section 4.16(b) of the Asset Purchase Agreement, Novell, on behalf of The SCO Group, hereby waives any purported right SCO may claim to terminate IBM's SVRX Licenses enumerated in Amendement X or to revoke any rights thereunder, including any purported rights to terminate asserted in SCO's letter of March 6, 2003 to IBM."

[Mr. Harley]

Q-cubed - impressive.

[Q Classic]

darl mcbride, ceo of sco, claiming that open source license gpl goes against copyrights--and is unconstitutional (that's more sco's claim than his. that can be found here).
quotes:

However, there is a group of software developers in the United States, and other parts of the world, that do not believe in the approach to copyright protection mandated by Congress. In the past 20 years, the Free Software Foundation and others in the Open Source software movement have set out to actively and intentionally undermine the U.S. and European systems of copyrights and patents. Leaders of the FSF have spent great efforts, written numerous articles and sometimes enforced the provisions of the GPL as part of a deeply held belief in the need to undermine or eliminate software patent and copyright laws.

The software license adopted by the GPL is called “copy left ” by its authors. This is because the GPL has the effect of requiring free and open access to Linux (and other) software code and prohibits any proprietary use thereof. As a result, the GPL is exactly opposite in its effect from the “copy right ” laws adopted by the US Congress and the European Union.

one reason why redhat is suing sco:
in the article above:

This stance against intellectual property laws has been adopted by several companies in the software industry, most notably Red Hat. Red Hat's position is that current U.S. intellectual property law “impedes innovation in software development” and that “software patents are inconsistent with open source/free software.” Red Hat has aggressively lobbied Congress to eliminate software patents and copyrights.

redhat's actual stance, which is against patents but not copyrights.



some comments in opposition to sco's letter:
lawrence lessig, professor at stanford law.
linus torvalds, creator of the linux kernel, finds info on copyright.

another response to sco by eben moglen, professor at columbia law.

[Wraith]

--"first, it will have invalidated the copyrights to virtually all code written by anybody who used it, sending it all into the public domain for them to use."

Actually, even this isn't the case. The GPL specifically contains a provision that says, essential, if the GPL is ever found to be invalid, all the original copyright holder retain ownership of their own code.

SCO is making a lot of noise about how GPL code should go public domain, but there's really no legal basis for such a thing to happen. The GPL is quite solidly founded on copyright law, and the unconsitutional claims are just making SCO look silly.
What's probably going on here is that SCO stole Linux code and put it into UnixWare, and is trying to cover their ass (the most likely segment is UnixWare's linux compatibility package). This is another area IBM's been working discovery on in the countersuit, I believe. It's an area for Red Hat to persue in their lawsuit as well.

--"Coincidentally, they had best be careful if this is the case,"

There are a large number of people sitting back with popcorn ready, waiting to watch the show when the SEC finally moves on them.

--"Okay, legally it's not a conspiracy."

Well, it may be a conspiracy after-the-fact. Microsoft apparently has very close ties to everyone else (except Sun) that has been putting money into SCO lately.

For those not looking at Groklaw, here's a quote from an IBM lawyer in the oral hearing last Friday:

"We don't think they had any evidence at the time they filed the case and we don't think they have any evidence now."

This was said in a federal court in front of the judge. This isn't the kind of things lawyers would say unless they're damn sure of it. IBM is very confident they've got a slam-dunk on this case.

Wraith
A=B and B=C therefore A=C {except where void or prohibited by law}

[Q Classic]

curioser and curioser.
here's the stock valuation of sco since the beginning of the year.
note that it starts shooting up starting march, when the suit was first filed.

some sales; looks like the veep for sales and the cfo are really cashing in, doesn't it?

don't let me or shawn or wraith convince you, ned. just look at some of these documents, and it'll definitely look like something's a bit fishy near the dead (great) salt lake.

[Q Classic]

What's probably going on here is that SCO stole Linux code and put it into UnixWare, and is trying to cover their ass (the most likely segment is UnixWare's linux compatibility package). This is another area IBM's been working discovery on in the countersuit, I believe. It's an area for Red Hat to persue in their lawsuit as well.

that particular area of contention is sco's linux kernel personality.

[Ned]

Q-Cubed, just let me say that the exclusion of "copyrights" and "patents" contained in section V of schedule 1.1 (b) of the 1995 asset purchase agreement essentially negates the whole of the rest of the asset purchase agreement. If SCO acquired none of the copyrights and patents in UNIX, it acquired essentially nothing. If SCO did not acquire the copyrights and patents, it had nothing to license to third parties or to license back to Novell.

I have seen this kind of crazy situation occur before with contracts drafted by General attorneys and never reviewed by patent attorneys. It is a wonder that we allow General attorneys to call themselves intellectual property attorneys without having to take and pass the patent bar exam. Many times these so-called intellectual property attorneys have little or no basic understanding of intellectual property law. In my humble opinion, anyone who trusts a major deal to a so-called intellectual property attorney who does not consult a patent attorney is a fool.

I think that SCO's potential remedy may be against the law firm(s) that drafted and/or reviewed this asset purchase agreement.

That being said, I think that SCO has at least an equitable right to sue under or to have the copyrights and patents transferred to it -- otherwise will not have received the benefit of the bargain in the 1995 asset purchase agreement. I am sure the court will rule on this course of the IBM case.

As to Novell's right to waive SCO's right to cancel the IBM license, I think they do not have that right. Novell retained in 100% interest in ongoing royalties from the IBM license and it secured that right by preventing SCO from canceling the IBM license. However, in 1996, IBM fully paid up its royalties so that Novell had no further interest to protect. This should operate to release Novell's security interest.

If IBM commits and is continuing to commit a material breachs of the license agreement so as to cause SCO material harm, it would be downright malicious for Novell to prevent SCO from canceling the IBM license where a cancellation would cause Novell no harm and were exercising its security rights by preventing SCO from canceling would cause SCO significant damage.

Turning to amendment X of the IBM license, the amendment provides that IBM's rights and licenses are paid up. It also provides the following:

"Notwithstanding the above, the irrevocable nature of the above rights will in no way be construed to limit Novell's or SCO's rights to enjoin or otherwise prohibit IBM from violating any and all of Novell's or SCO's rights under this Amendment No. X, the Related Agreements, or under general patent, copyright, or trademark law."

So I would agree that SCO has no right to cancel the IBM license, however it retains the full right to sue IBM for copyright and patent infringement for merging AIX "UNIX" code with Linux. Second, SCO should be able to enjoin further distribution of Linux to the extent it contains any AIX "UNIX" code.

As to what code in AIX is "UNIX" code, it is any code and infringes any of the UNIX patents or that is a copy of UNIX code, whether verbatim or substantially similar, or is derived from UNIX.

[Q Classic]

the problem with SCO trying to do that is they haven't shown any proof.

note that i've never said that SCO didn't have the right to do so. i've merely pointed out that SCO sued ibm over contract rights, and then expanded it, however poorly, to cover other things, such as linux. i have no problem with sco and ibm tussling over broken contracts.

however, for sco to enjoin further distribution of linux based on copyrights which have not been proven, arguing that they have a copyright to it which, even though they distributed the material under gpl, can be removed from the gpl scheme (something not quite permitted)... ibm would not be the only one affected.
suse (now owned by novell), turbolinux, redhat, and numerous other linux companies would be forced to lose their only means of income.

now, as i understand it, for such injunctions to occur, one must first show proof to the judge. sco hasn't done that. instead, sco's made a lot of noise, but when judges in germany demanded proof, none was forthcoming. when linux coders throughout the world demanded proof, sco said that all they'd do with it is remove it from linux--which would solve the whole copyright dispute then, wouldn't it? when sco showed 'proof' at scoforum, it was found that sco didn't own any of the code they said was theirs.

this is why sco should not be able to prohibit further distribution of linux until it shows solid proof.