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SCO: We are not talking about BSD code
By Jeremy C. Reed
Today, SCO announced that it received copyright notices back from the United States Copyright office. What started as a contract case (which ended up in litigation), is now a copyright issue.
In a teleconference this morning, Darl McBride, president and CEO of The SCO Group, said they confirm the fact that the Linux 2.4 kernel contains hundreds of files taken directly from their code.
He said this was literal copying from original code, literal copying from derivative work, and also non-literal copying of sequence and structuring. Direct line-by-line copying can be seen, including developer comments, errors and typos, SCO reported.
SCO said that in the large jump from Linux 2.2 to 2.4, thousands of new files from vendors were added. Hundreds should be protected, SCO said.
The main issue is with multi-processing code, SCO said.
"If all was removed, Linux would have no enterprise use," McBride said.
SCO allows source code viewing in Lindon, Utah. It will also be available for viewing at their SCO conference in Las Vegas in August.
McBride said in some source code, IBM put their signature on it. This includes source code from Dynix, he said.
"We are not talking about BSD code," said McBride. "We are not even talking about Linux 2.2 code."
"Up to this point, he [Linus Torvalds] has chosen not to look at this code," said McBride in regards to the Linux kernel maintainer. "We're not saying he caused these problems. He inherited them."
In an attempt to get recourse for their losses, SCO is now offering UnixWare 7.1.3 licenses tailored to support run-time, binary use of Linux for all commercial users of Linux based on kernel version 2.4.x and later.
By not providing a warranty, IBM has profited while shifting liability to the end-users, SCO said.
SCO has also had discussions with other System V vendors with who they have confidentiality agreements in place. (They have showed them the code too, SCO said.)
McBride said it was unprecedented for receiving software from a vendor without a warranty attached to it. SCO said that it is not necessary to resolve the IBM issue before litigation with other Linux users.
Under copyright laws, you can sue third-party distributors who contributed to infringement in addition to the end-user, said David Boise, SCO's legal counsel.
With the UnixWare 7.1.3 license, SCO will hold its licensees harmless to run binaries, SCO announced. It is designed to provide immediate relief for Linux users and they are working on pricing details now.
SCO said that their run-time only license allows users to run both licenses (GPL and UnixWare) in parallel, SCO said.
The SCO license does not protect source code users, SCO said.
DiscussionDiscuss this article below.
paying SCO - Dave Mears
The only one who should be sued is the person who did the copying, and the company that they work for.
Don't miss two scary items in Jeremy's article, which should be considered just small parts of a larger warning from those with expensive lawyers (and I suspect that SCO is just the messenger): don't mess around in our commercial marketplace unless you're prepared to take on our lawyers. First, note the claim that someone (IBM) has profited from Linux even though they have not charged for it. Too many legal IANAL-types think that if you don't charge for something, you can't be sued for profiting from it. Second, note the claim that simple distributors of infringing code are subject to being sued, presumably with similar reasoning, but more obviously if the distributors have charged for it as some do.
Call this FUD if you'd like, but if the suer can keep his legal overhead (for C&D letters, etc.) and license fees low enough, he can get some pretty small fry to pay fees, let alone the "poor" folks with big money to go after.
Some people over at Linux (and maybe the BSDs too, someday) should have taken my advice years ago to write a pattern-matching program to identify suspicious correlations between their code and other code (eg, UNIX), which, if this article is correct about most problems going in between 2.2 and 2.4, would have needed to be run periodically.
THE TIME TO GO TO COURT FOR AN INJUNCTION IS NOW (or when SCO releases the licensing program for real)!
SCO has some legal challenges ahead! Other than the LINUX GNU GPL issues AND their confusion over UNIX facts (as posted on the Open Source Initiative (OSI)site - see later in this post for the OSI link)... SCO, as dubious or actual IP owners, and as a potential (but not proven) IP principle, has allowed others to sell, distribute, or give away LINUX with their "now rumored to be claimed" SCO Unix IP in it for many many years! SCO has a long history of approving of any LINUX use, by anyone, for years without saying a negative or alarming word about it. In fact, SCO showed every sign that they supported and encouraged all LINUX use! This gets them into other areas of LAW outside of just the IP issues.
Please search google on these legal terms: 1. apparent authority 2. ostensible authority 3. ostensible agent Also see dictionary.law.com where it talks about agency here: http://dictionary.law.com
It has been explained recently in a seminiar, given by an expert who was advising the audience all about legal issues, that a principle is responsible for the actions of others that are their employees or others that represent themselves, or appear to one as being allowed by the principle to act on behalf of the principle.
The example given during the lecture was as follows (having to do with the laws of agency):
A shop owner goes into the back room and leaves the shop unattended. A customer (A) comes in and looks around. A second customer (B) comes in and looks around. Customer A then goes behind the counter and acts like an employee. Customer B then picks up an item, goes to the counter to buy this item, and asks the price. Customer A tells Customer B that the price is 90% off and sells the item for 90% off of the retail listed price. Q: Is the sale to customer B final at the 90% off price? YES, according to the laws of agency there was an apparent or ostensible authority situation and the innnocent 3rd party is not to be harmed (or told to pay the full price after the fact)!
SO - if this holds true for any product (as it will, as a product is not any different than any other product)... then, any and all IP owners that allow the IP to be sold or distributed can not AFTER the FACT (where the IP has been sold to or distributed to an innocent 3rd party customer)... they can not then, after a firm deal has been made final by any apparent or ostensible agent, go after the customer and cause them harm (by asking for payment of any kind as the terms and understandings of the original deal as made by the agent with apparent or ostensible authority are final and this WILL STAND up in court!
As it relates to the example above: SCO is a shop owner of their "claimed, but not proven to be theirs" IP. SCO has been in the back room for years while SCO's agents donated code to the LINUX and the GNU GPL. AND for years while SCO was in the front of the store... SCO watched, knew, and approved of other agents that were selling, distributing, and giving away LINUX. SCO also knew that distributors and various LINUX web sites were allowing downloads and use of LINUX and many of these sites were stating that support and upgrades would be always available (for fee or free, depending) for all LINUX users forever... As far a LINUX is concerned, since SCO can indeed be seen in this case as being a potential IP principle (or shop owner), and we LINUX users this case are the innocent 3rd party customers... the deal we aquired LINUX under has terms and conditions (either with a price tag attached, or not) that are binding AND still apply today AND will still apply tomorrow when SCO comes knocking and looking for money!
SCO is wrong on all accounts that they are making claims about:
1 - SCO's evidence of code ownership and their ownership of UNIX is shown to be false at this site: http://www.opensource.org/sco-vs-ibm.html
2. - Today, SCO can not harm any current LINUX (or AIX ) customer - it is apparent that the LAW says so!
3 - The LINUX GNU GPL forbids any claim like the one that the article says that SCO is planning!
note: part of this comment is only for countries that have a long history of court cases on the subject of the laws of agency.
Apparent or ostensible authority win = FREEDOM NOW A win NOW using the apparent or ostensible authority arguement would mean instant freedom for 100% of all current LINUX users! As this would cover all past use and even future use (per the agreements and understanding we all had when we first tried out LINUX, where we were lead to believe that all future upgrades to LINUX would be available under the terms that we first aquired LINUX in the first place!
This case should be the defense as soon as SCO hits the streets with their direct actions against LINUX users! AS with a win by using this defense (or offense)... then, we would then have the leasure to defend and defeat SCO on any other IP claims!
However, by attacking SCO first it lends credibility to their claim as it would "give them" the high ground as being reconized by the user as a valid IP holder of LINUX. SO - maybe the best option is to wait until they try to come after us (or to wait until a suit on the IP is settled)... ???
OR since there is a case already with IBM in progress... then, MAYBE IBM should protect their users, and other LINUX or AIX users, NOW by getting a restraining order AND a ruling on apparent or ostensible authority related agent's actions, whereby innocent 3rd party customers could be from the ruling date forward 100% protected from any and all SCO IP claims for LINUX or AIX. This could happen as part of their case as the judge in their case could keep SCO quiet on any IP FUD until the case is settled AND could rule on apparent or ostensible authority freedom for all current LINUX users!
It is time for a judge to rule on relief for LINUX and AIX users. This could be done via the apparent or ostensible authority arguement, and/or by injunction, telling SCO to cease all FUD and licensing claims against LINUX and AIX users!
It is only "when" the court(s) make a final ruling on SCO's claims that the new road map on LINUX IP be clearly available for all (including SCO)... and not until!
Until the court has a chance to see the evidence it is prudent that THE COURT SHOULD TELL SCO TO SHUT UP... AND at the same time the court could RULE THAT if any SCO IP is discovered to be in LINUX that due to apparent or obsensible authority that SCO, as a principle, who had open access to the LINUX code, was in the front of the store approving of this IP being sold, distributed, and downloaded by innocent 3rd party customers for years and years and that SCO, as a result, dropped the IP ball years ago and CAN NOT AT THIS TIME OR ANY TIME IN THE FUTURE try to financially harm any past, current, or future LINUX user!
The government is protecting a paper sack with whatever in it. What would the courts say if an author claims that Tom Clancy stole his ideas, and by the way the allegedledly stolen material is still in the creator's mind?? It has not been published but he intends to publish?
There are only so many ways to program, personally I really don't see the significance of identical or even plagerized comment lines.
SCO is about to kill the US IT industry.
Someone replied that they probably couldn't do it because of the number of non-AT&T licensors whose work was included in Unix and who would need to be asked for permission.
Two points - if those non-AT&T contributors had also contributed to Linux, well, then, they could program and rewrite under whatever license they wished, as the original copyright-holders and there isn't a court in the land who would be able to deny them that right;
Linux - like BSD - has hundreds of contributors. And most of them won't be happy about SCO relicensing their work without consulting them. I think a class action suit on the grounds of SCO's blatant software piracy (misappropriation of independend software developers' source code and binaries) of hundreds of Linux contributors, is very much in order.
And of course, SCO's been spouting off like a kettle left for too long on the element. I think we've had a bit too much of them.
Small inventors are not protected, they are in fact eliminated from the business place especially in the technical fields where patents and software copyrights can be used to sue a small competitor out of existence.
How do you combat this? With a copyright license that explicitly gives any owner (one who has a copy) the right to copy, modify, and distribute the software at will while concurrently preventing anyone from appropriating it or any derivative as Intellectual Property behind a different limiting license. The GPL. This is what's at stake.
Notice that the GPL isn't some radical license. It doesn't give you odd, and radical rights which are some type of socialist remedy for 'evil' capitalism. They give back the natural free-market rights, that law has ARTIFICIALLY TAKEN FROM YOU! A software program is actually data. It's all 1's and 0's, even if it's in text form. All computer operation consists of copying from one memory location to another! All of it, from loading a program into memory from the hard drive, to shifting program instructions into the CPU's registers. It's all copying! No part of manipulation of program's on a computer don't involve copying. The true cost of copying a program consists of a combination of depreciation costs of using the hardware, ownership of the memory locations, and a certain amount of electricity to make it happen. But in real terms it's damn near 0!
So copying costs almost nothing. Why then should it cost me 100 dollars for Windows 98? If someone has a COPY, why can't I make a copy? After all, copying is cheap. I can purchase a 50 cent CD, and rent some burning equipment and make a copy. There is no inherent cost! Unless the government intervenes and gives Microsoft the right to legal remedy for my act of copying.
Hmmm, now the established software companies would have you believe that the quality of products on the market and the level of innovation are directly related to their ability to license (and thus charge high prices for) their software products. The problem with that argument is that we have examples in existence today which refute that assertion. There are programs which are capable, mature, and available at low cost (download costs and burning costs). These programs were created without restrictive licensing as the incentive... without exorbitant profit margins. In fact, large companies appropriated the work of the average Joe Blow programmer and prevented him from using it directly for the economic betterment of himself.
Now here comes SCO, trying to assert ownership of something which by its nature can only be owned through an artificial legal fabrication. The GPL is what's on trial here, and the nature of the GPL is to deny the "Copyright" and the "Patent" their expressed powers. It is using the Copyright against itself. This case is not simply about Linux, or even about the GPL. It's about the damage that copyrights and patents are doing to the consumer, especially in the realm of Software Development!
David S. Boyer
Herein lies the problem with your post. SCO is in no way both willing and able to prove that there is any such code in the Linux kernel. The only code that they have made any verifiable claims of being copied does not appear to be owned by them. Their claim is based on a legal theory that their contract with IBM gives them ownership of code that IBM wrote and copyrighted years after the contract was signed simply because IBM used the code in their AIX release. IBM clearly did not believe their contract transferred copyright of code that they wrote at a later time, and apparently neither did previous holders of the System V copyright. Even if the contract ostensibly had this provision, any clause that transfers copyright on an indefinite collection of copyrighted material for an indefinite future time period (read, forever) will fairly certainly not be found to be a legal clause. Contract clauses that call for any kind of a blanket transfer of copyright of material yet to be written are not legal clauses. Copyright transfer has to be very specific, and exclusive rights for non-transferred copyrightable material can only be granted for a limited amount of time by a contract.
You're "One more thing" post is simply totally unfounded. Code that does the same thing in a different way is not protected by copyright. If it were, practically every program in existence would be a violation of the copyright of the first few written (at least the first few written in the same language), since basic logic structures for doing similar things are the same in all these programs. This argument doesn't even hold up for books and movies. How many movies have you seen with similar plots? Look at murder mysteries, for instance. You appear to simply not know what you are talking about. This argument is baseless from McBride, and it is baseless from you. Reverse engineering is not illegal. Companies have done it for years and no lawsuits against them have been successful. (The DMCA attempts to throw a wrench in things by making it so routines for "copy protection" can not be reverse engineered, but this does not apply in this case).
In short, SCO's credibility is nil.
I hope you're right, but my view is that this sco affair is just the "shape of things to come". What Mcbride and friends are doing is perfectly legal, and actually wholly approved by the "stock market" - see how their share price went up? But quite a few suckers are going to buy sco shares...and a year from now they will be worthless.
The only people that will have profited will be Boies, McBride and friends.Seriously, this whole affair smells of a scam. I think what we are seeing is yet one nore example of modern "snake-oil" salespeople in action - or I hope that is what it is, because if Linux were to be destroyed by this, then I'm going back to work with pen and paper :-)
Oh no just thought of something else - then Mcnealy will see an opportunity and will want to emulate Mcbride...:-(
SOCX is thier stock ticker. We could all combine forces and put up the money to buy 51% of thier public stock.
Then you will be in part ownership of thier company.
Before they could sell or merge, you would have a deciding rule. Then you could hold it and force them out of buisness :D. The best part is that they may be fed up and youll own SCO as a whole. " What would we do with SCO" ? --- Turn it over to the Open Group.
It would really burn SCO's Ass to see the same people they took to court, now own and operate SCO, and promote all GPL Software :D
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