This is the end for SCO

[Q Classic]

to continue about the linux kernel personality: linux is open source. sco's linux kernal personality is not.

how can those who wrote the linux kernel be sure that sco hasn't misappropriated linux code in violation to the gpl? they can't. and to cover their bases, could that be one reason why sco is now trying to destroy the gpl?

[Urban Ranger]

Originally posted by 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 am not sure about that, with the number of lawyers pouring over the agreement, I'd reckon one of them would have already noticed this if that is indeed the case.

If that is true, than SCO has even less ground for their suits. They would be more of a laughing stock (if that is in fact possible).

"Why are you suing us? You don't even have ownship of this stuff. Now would you just kindly pay this bill? Yeah, all 10 million of it."

[Ned]

Q-Cubed, I agee that SCO has to prove its case. That it hasn't yet does not mean it cannot. However, IBM may have materially infected Linux so as to pose a severe risk down the road to all Linux users.

[Q Classic]

oh, and ned, the reason why the open source people are up in arms isn't because of the sco-ibm contract dispute over aix/unix.

it's over the fact that sco keeps insisting that the whole open-source development community is "communist", "anti-copyright", and "anti-ip" hackers who couldn't code their way out of a cardboard box without stealing some good code from them.

the problem is, numerous folk have done code comparisons between linux and unix, and all of sco's claims seem to be based on no research.

this after sco claimed mit mathematicians proved that there were strong similarities of code; those mit mathematicians were never named, and have not stepped forward.

most of the open source world could care less as to whether ibm's aix and sco's unixware were troubled. sco might have in fact gotten much better press had it kept to that original focus. by starting to take potshots at linux and making unsubstantiated claims, sco has opened itself up to lawsuits from numerous places: redhat, for instance, suing because sco's comments strike at the very core of redhat's business; several big-name open source celebrities, like linus torvalds, could now conceivably sue sco for defamation.

furthermore, if sco really did have a good case, why does it keep shooting itself in the foot by being so difficult in the legal arena? deliberately irritating ibm's legal staff and engineering staff by sending over reams of paper on which code was printed: useless for comparison. or responding to ibm's motions for discovery with their own motions of discovery, saying that they won't know what ibm did wrong until they see ibm's code. or not even having their star lawyer, david boies, showing up at the first hearing?

what could sco possibly gain by these antics?

[Ned]

Originally posted by Urban Ranger


I am not sure about that, with the number of lawyers pouring over the agreement, I'd reckon one of them would have already noticed this if that is indeed the case.

If that is true, than SCO has even less ground for their suits. They would be more of a laughing stock (if that is in fact possible).

"Why are you suing us? You don't even have ownship of this stuff. Now would you just kindly pay this bill? Yeah, all 10 million of it."

Regardless of title, clearly SCO has "equitable" ownership.

[Q Classic]

furthermore, some of the code in question that sco is talking about... sco either doesn't really own, or the features showed up in linux before they showed up in sco's products.

[Q Classic]

i'm not talking about unix/aix here. i'm talking specifically about smp, numa, and jfs, all present in aix, unixware, and linux.

however, smp and numa showed up in linux before they showed up in sco's unixware, and jfs was always ibm's baby, not sco's.

[Q Classic]

furthermore, if sco really had a solid case, you'd think they wouldn't want to risk their position by making obviously factual misstatements; they seem to be under the assumption that the gpl is enforced by the fsf, which is wrong. they seem to be under the assumption that the gpl is unconstitutional, which is wrong. the number of misstatements they have made has only hurt their position; it's a wonder why boies hasn't put a muzzle on mcbride and sontag.

[Q Classic]

finally, if sco's case was really rock-solid against ibm, for what reason would they expand it first to linux... and then to bsd, which was a finished case since before this iteration of sco even existed?

[Ned]

Q-Cubed, the issue is not what appeared in SCO's products. Is is the extent to which the AIX that was contributed to Linux is UNIX V code, which dates from 1985 or before. I assume that that is the at least some of the more critical AIX code, if not all of it. However, that is still subject to proof.

I have not idea why SCO is making mistatements.

[Urban Ranger]

Why would it matter to SCO whether IBM contributed AIX code to Linux given that SCO does not own or control the copyrights and patents of those code fragments?

[Ned]

Urban Ranger, on the contrary, I believe that SCO has the equitable right to enforce the patents and copyrights even if it does not own them.

By analogy, assume UNIX was a piece of property upon which an apartment building was constructed and that Novell sold that property to SCO and retained only a right to use one apartment together with the right to obtain the rents from certain other apartments, including one occupied by IBM.

Now, if SCO did not own the building, how could it rent out further apartments? If it did not own the building how could it evict IBM if IBM began to become a nuisance?

Now what would you say about deed of sale that retained title to the property? What one would say is that the seller both sold the property and did not sell the property. The retention of title is highly inconsistent with selling the property. It's flat-out contradictory in fact.

However if it was the clear intent for the seller to sell the property to the buyer, the law will say that the seller holds the title to the property for the benefit of the buyer.

Under the circumstances of this particular case, SCO is the beneficial owner of the title to the UNIX property, which consists of the UNIX copyrights and patents.

[Q Classic]

Q-Cubed, the issue is not what appeared in SCO's products. Is is the extent to which the AIX that was contributed to Linux is UNIX V code, which dates from 1985 or before. I assume that that is the at least some of the more critical AIX code, if not all of it. However, that is still subject to proof.

I have not idea why SCO is making mistatements.

and this is the crux of the problem. with the number of misstatements that sco is making, with the number of antics they are performing in the legal arena which are not winning them over friends in the judiciary, with the comments they are spewing in the public that are making them many offended people in the it industry--even those that actually buy and use unixware are being driven away (see the sec filings), and with the gross misrepresentations of the gpl (it's unconstitutional! it's communist!), the open source community (hack programmer-hackers who couldn't get a job, the lot of them) and their skills...

how credible do they seem?

and based off of their credibility, which because of their behavior most people think is rather weak, would you eb willing at this juncture, when they have not shown any proof, when everything they've shown has been quickly disproven...

would you still be willing to stop distributing linux when so many other companies outside the scope of this lawsuit, such as redhat, or suse, or lycoris, would you be willing to prohibit them from engaging in the only or core thing from which they gain all of their profits? would you be willing to force those companies to pay a sizeable portion to their earnings to a company in licensing fees which this company might not even own?

if your answer is yes, then, quite frankly, i'm absolutely befuddled in how you see the free market and the legal system working.

[Q Classic]

and ned, the flaw with your analogy of the building is this: software is intellectual property.

you have numerous programmers who program their own way.

one programmer may have at one point worked on unix sysv. he might have later left this job, and worked on linux. because programmers always program in the manner which they've settled into, the methods they use to solve certain problems will be the same when they run across those same problems.

it is not inconceivable that some of the code which sco thinks is offending is in fact merely code contributed by someone who worked on both kernels.

or, to put it in terms of your analogy:
should sco, not even the original owner of a building, be allowed to rent out a different building entirely that may have had the same architect and a few of the same contractors on the basis that their buildings look the same, without ever having to show proof for the deed?

[Q Classic]

the problem with sco is, you could use fez's famous argument: "you have nothing! you have shown nothing!" against them, and it would actually be valid.