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SCO To Show Copied Code 646

Posted by Hemos
from the throwing-mud-in-the-water dept.
A number of people have written this morning in regards to the latest update in the ongoing SCO dropping Linux, with word from LinuxJournal that SCO has broadened the implications of code copying. A number of analyst groups have come out, however, saying that it's fine to keep moving ahead with Linux adoption - and there's an interesting interview with SCO's General Manager of SCOSource.
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SCO To Show Copied Code

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  • Re:All your base (Score:2, Insightful)

    by Michael's a Jerk! (668185) on Thursday May 15, 2003 @07:33AM (#5962624) Homepage Journal
    As an astute poster pointed out on OSNews, they cannot collect on any damages anyway.

    They distribute(ed) a version of Linux under the GPL, a licence that legally permits people to copy and branch the code assuming they put it under the GPL. Unfortunately for SCO, whether or not they knew they were distributing their own IP under the GPL or not is irrelevant to the rather compelling argument that they did put their IP under the GPL, and now that they continued to distribute linux after they found the alleged infringements means that no court would declare that licence invalid.

    They have knowingly distributed what is potentially their own code under the GPL for nearly a year now. The GPL licence should hold, infringement-free.
  • by nurb432 (527695) on Thursday May 15, 2003 @07:40AM (#5962662) Homepage Journal
    I wonder if IBM just a warm up for even bigger fish over in Redmond? And to raise capital for the battle.

  • by Michael's a Jerk! (668185) on Thursday May 15, 2003 @07:44AM (#5962687) Homepage Journal
    Check out this article [librenix.com] about the GPL implications of their republishing IBM's alegedly infringing code in their own version of Linux.
  • by belroth (103586) on Thursday May 15, 2003 @07:54AM (#5962739)
    say "see, I told you so! GPL caused SCO to lose their IP!!!!".
    Alternatively it could be argued, possibly by shareholders in a due diligence case, that SCO lost any IP by not exercising proper care over what they were selling.
    You could view this as only peripherally about the terms of the GPL and more about SCO being careless - if they'd used the BSD, Artistic, or Moz licenses the effect on any proprietary IP would be the same.
  • by jkrise (535370) on Thursday May 15, 2003 @07:58AM (#5962757) Journal
    The merits of this case aside, one thing will be clear before this case gets closed - Is IBM:

    a. Loyal to GNU/Linux for ever.
    b. a mere hanger-on or passenger, if you will
    c. going to slowly pull the rug from under Linux

    IBM's recent alliance with MS et al in the Trustworthy Computing Alliance, I feel, casts more than a shadow of doubt, regarding it's true intentions. While it is apparently politically risky to openly side with Open Source, especially for an entity such as IBM, I believe they have stuck their necks out long enuff to retract now.

    OTOH, IBM could play a helpless victim, settle with SCO for let's say 10 million (peanuts for them) and then all hell breaks loose for all the other players.

    The ambivalence of IBM is frightening, to say the least.
  • by Basje (26968) <bas@bloemsaat.org> on Thursday May 15, 2003 @08:01AM (#5962770) Homepage
    If anyone argues this, we lose in a bigger way. MS can then say "see, I told you so! GPL caused SCO to lose their IP".

    I think that is a moot point. Whatever comes from this, open source will lose, whether SCO wins ("see, linux will lose you money") or loses ("see, your IP is at stake"). I think the second is less damaging because it's simply because of SCO's behaviour, and that can be shown.

    The real sting in here is that while the code may well be GPL, the process and ideas it implements may very well, and probably are, still protected by patent laws. It's the same as with LZH compression: the algorithm is proprietary, even when there's GPL-ed code that implements it.
  • Re:No fear (Score:5, Insightful)

    by johannesg (664142) on Thursday May 15, 2003 @08:03AM (#5962776)
    The community has already shown itself to be without fear, wouldn't you say? As for uncertainty and doubt, I'm uncertain if SCO is a real company or just a front for Microsoft, and if they aren't I doubt their sanity.

    Continuing on a slightly more serious note, the only entity that is greatly served by slowing Linux's adoptation into the business world is, indeed, Microsoft. Are there any financial ties between Microsoft and SCO? I find it hard to believe that SCO is self-destructing just for the hell of it. I have not much trouble imagining Microsoft going through the ol' FUD routine.

  • by TokyoBoy (217214) on Thursday May 15, 2003 @08:04AM (#5962784) Homepage
    The sooner the "offending" code is known, the better for the Linux communuity. If the code is revealed, it will be removed as soon as possible and patches/replacement code can be worked on immediately. The OpenSource kernel can be cleaned as soon as possible.

    One of the many things that has bugged me is that by not doing this, SCO has been forcing infringment. By allowing people to know what needs to be changed, we can move on.

    If IBM really did contribute code they shouldn't have, then SCO's issues are with IBM, not the rest of the community.

  • Re:Check out... (Score:3, Insightful)

    by Komarosu (538875) <nik_doof @ n i k d o of.net> on Thursday May 15, 2003 @08:09AM (#5962815) Homepage
    its amazing how quotes can be took out of context :)
  • by Komarosu (538875) <nik_doof @ n i k d o of.net> on Thursday May 15, 2003 @08:12AM (#5962837) Homepage
    aha but how long before SCO announces a jihad against BSD? looks like the whole theory of "if we can't have it, no one can!"
  • Re:Check out... (Score:3, Insightful)

    by sfraggle (212671) on Thursday May 15, 2003 @08:13AM (#5962842)
    This one seems to be the funniest:
    "We have to remember that Linux is a follow-on to UNIX. It's not just a UNIX clone. It's actually a UNIX successor."

    Bruce Perens, mpulse magazine, December 2001.
    Are they implying their own product is obsolete?
  • by pesc (147035) on Thursday May 15, 2003 @08:13AM (#5962843)
    Well, karma whoring becomes easy when you can just copy someone else's [slashdot.org]
    funny post from an earlier discussion!

    Hopefully, some other moderators will correct this ;-)
  • by bovinewasteproduct (514128) <gclarkii.gbdispatch@com> on Thursday May 15, 2003 @08:15AM (#5962855) Homepage
    The only problem is that article has a STRANGE interpretation of clause 4.

    It's trying to say that if you relicense code you own once it's been GPL'ed, you loose all rights... That clause only applies to code you RECEIVE under the GPL, not code you PUT under the GPL.

    BWP
  • by gunnk (463227) <gunnk&mail,fpg,unc,edu> on Thursday May 15, 2003 @08:16AM (#5962857) Homepage
    I think you may be mistaken for taking IBM's lack of vocal response to SCO as "ambivalence". SCO is storming around, yelling and screaming about how Linux and IBM have horribly wronged them. IBM is more professional: they won't posture, but they'll destroy them in the actual fight.

    Any time you find yourself in a battle, the more you posture, the more you undermine your position by exposing your weaknesses through your bravado. It is better to approach a battle quietly, and then destroy your opponent completely. IBM knows this.
  • by Gleef (86) * on Thursday May 15, 2003 @08:24AM (#5962915) Homepage
    pe1rxq wrote:

    The problem is that the owner of this ip (most unix patents will probably be outdated anyhow) has been distributing it under the gpl, and thus giving up al rights to enforce their patents. The LZH case was different, the owner of the ip never gave permission to use it in gpl programs, and thus the person who first distributed it under the gpl (not those persons who distributed it further) would be liable.

    This isn't a Patent case, SCO is suing on Copyright Infringement and Trade Secret grounds. The rules are completely different.

    Distributing under the GPL does not touch their copyrights over their own code. SCO still has copyright on any code they wrote that they didn't assign copyright to anyone else (eg. their extensions to Unix System V). They also still have copyright on any code that had copyright assigned to them that they didn't assign to anyone else (eg. the Xenix and Unix System V codebases). These copyrights aren't going anywhere for a while, but I seriously doubt that they have the relationship to the Linux code that SCO claims.

    My understanding of Trade Secret law, on the other hand, tells me that distributing under the GPL completely destroys any Trade Secret case they may have. In order to claim that something is a Trade Secret, you need to maintain dilligence in keeping other people from finding out your information. Distribution under anything but a NDA strikes me as incompatible with a Trade Secret. Distributing your own Trade Secrets under the GPL is likely to get a judge to laugh at you.

    I am not a lawyer. The above should not be considered legal advice. Mashed potatos can be your friend
  • by squiggleslash (241428) on Thursday May 15, 2003 @08:26AM (#5962927) Homepage Journal
    Open source (and free software) doesn't lose if SCO loses because they never had a case to begin with. Until we see the source Linus and his band of jolly pirates created by allegedly copying SCO, we can't really judge either way.

    SCO's decision to hold off this long and not even provide potential future litigants with the opportunity to remove the code from their systems and minimise the alleged damage suggests, to me, that they really don't have a case. I guess we'll find out when they eventually show the code.

  • Ignore it (Score:2, Insightful)

    by Crashmarik (635988) on Thursday May 15, 2003 @08:38AM (#5963011)
    The surest sign that this is nothing but a shakedown tactic by sco is the fact that they are waging a PR campaign on their website about the lawsuit.

    Look at IBM's site theres nothing about this. They are perfectly well aware that the judges opinion is the only one that counts. They are also serious about their legal matters.

    SCO wants as much free publicity as they can get. This latest bit reminds me of the demonstrations that people with perpetual motion machines perform.

    SCO is dying, their financials show this, and they long ago made themselves irrelevant. Go for the important stuff, the NEW GCC IS OUT.
  • by Sven Tuerpe (265795) <sven.gaos@org> on Thursday May 15, 2003 @08:45AM (#5963058) Homepage
    If anyone argues this, we lose in a bigger way. MS can then say "see, I told you so! GPL caused SCO to lose their IP!!!!".

    So what? Smart people understand that progress of mankind is not and cannot be property of individuals or small groups; it belongs to mankind as a whole. The entire notion of intellectual property is misplaced here. Mankind is discovering how to make computers a useful universal too and how to build an Internet out of all those computers. Linux is part of that ongoing discovery. What could it be that gives a small group of people the right to own progress?

  • by TheConfusedOne (442158) <the,confused,one&gmail,com> on Thursday May 15, 2003 @08:49AM (#5963087) Journal
    We have the classic GPL/Copyright confusion going on here again.

    Think of it this way: Copyright is the house. GPL is a door into the house.

    By publishing copyrighted work under the GPL that means that you give people to come in and do whatever they want to the house within the boundaries of the license. You still own the original house and can build another door into it that has less abilities.

    You cannot, however, close the original GPL door.

    You could build an extension onto the house that doesn't use any of the originally GPL'd portions and keep access to that extension away from the GPL door, but you can't close off the original parts of the house.

    Trade Secrets are even trickier. You need to protect trade secrets. If you fail to protect them and lose them then they're gone. If you do take reasonable measures to protect them and they're stolen illegally then you can prosecute. (Look at that DirecTV suit where the law clerk photocopied the documents.)

    So, the argument can be made that by SCO/Caldera's act of distributing Linux they inadvertenly GPL'd any and all IP that they may have included in the work. The argument can also be made that the original person who published the work under the GPL didn't have the right to do that. The problem is that SCO is a publisher too.

    Personally I think we should just get ourselves back to the easy questions like "what is the sound of one hand clapping?"
  • by Anonymous Coward on Thursday May 15, 2003 @08:57AM (#5963148)
    Maybe Microsoft approached SCO and said "hey, you guys are almost sunk, have been going downhill for years, what do you think about using your System V ownership to sue IBM and cast a whole lot of FUD over Linux and also IBM's involvement in Open Source? If you win, you'll get a pile of cash from IBM, and they'll be sunk, making it possible for you guys to become the biggest Unix provider on the planet. If you loose we'll buy you out for a nice generous sum of money. Either way, you win. Oh, BTW, this conversation never took place."
  • Re:SCO is dying (Score:1, Insightful)

    by Anonymous Coward on Thursday May 15, 2003 @08:59AM (#5963168)
    Those figures are patently absurd. Just because people don't post on Usenet doesn't mean that they software isn't in use.

    OpenServer's niche is small business vertical applications. The people using it don't know OpenServer from Linux from AIX from Windows. They just know it's the computer they use to {sell mufflers, count wasted hamburger patties, etc.}

    I know of one company with probably 5000 - 9000 OpenServer systems in the field - but they're all used by naive users, not people who would ever possibly post to Usenet.

    Also, people using a commercial operating system are more likely to have paid support from the vendor, rather than rely on Usenet.

    That said, I think anyone who's relying on any SCO product needs to start looking at porting to something else, and looking at it now, because SCO doesn't seem to want to exist much longer, and I don't see IBM wanting to support any of their products.

  • by curtisk (191737) on Thursday May 15, 2003 @09:03AM (#5963198) Homepage Journal
    what a tool, not only does he copy joke posts but legit ones as well, see top of this thread!

    At least in this one, he says it was posted before [slashdot.org]

    crikey!

  • by Mandelbrute (308591) on Thursday May 15, 2003 @09:23AM (#5963348)
    Why are the antics of some managers so childish lately? The whole thing reads like this to me:

    Brat - He stole my thingy, and my other thing!

    Adult - OK Timmy, I'll put on the blanket everything he has, and you can point out what he stole.

    Brat - Won't! He stole my thingy!

  • by molarmass192 (608071) on Thursday May 15, 2003 @09:37AM (#5963452) Homepage Journal
    Doesn't matter if somebody sneaked the code in behind their back, they distributed that code under the GPL and ignorance is not a defense when it comes to law, it's called "due diligence" and it's pre-law 101 stuff. It's the same reason I couldn't accept a package from a stranger, bring it into the country, and claim I didn't know about it when it turns out to be 10 kilos of heroin.
  • by Skapare (16644) on Thursday May 15, 2003 @10:00AM (#5963666) Homepage
    Chris Sontag, senior vice president and general manager of The SCO Group's SCOsource licensing operation, said in an interview that he will show independent experts, under a non-disclosure agreement, the evidence behind SCO's allegations that the Linux kernel source contains code copied from SCO UnixWare illegally and without credit.

    And will they even keep secret the names of these so-called experts? Of course I would never trust anyone who signs a non-disclosure agreement that prevents them from revealing the full truth about what they are examining. I probably would never trust those people about anything ever again. I know I would never sign such an agreement (but I don't have the political clout to be called an expert, so I'll let my 24 years of operating systems work (including source code internals), 19 years of C programming, 15 years of Unix experience, and 9 years of working on Linux, continue to do what it should be doing ... which doesn't include helping low-life underpaid executives recover their worthless stock options).

  • by belroth (103586) on Thursday May 15, 2003 @10:01AM (#5963676)
    Well, that just reinforces the arguement that will be made that companies should stay away from any Open Source projects.
    Well, that just reinforces the arguement that will be made that companies should stay away from things if they don't know what they're doing.
  • by Ingar (135196) on Thursday May 15, 2003 @10:17AM (#5963805)
    The problem is that they first must prove that IBM has done what they are accused of. The licence between SCO and IBM does not allow for SCO to withdraw their licence on a whim. They claim that IBM has violated the licence, but until that's been proved, they have no right to withdraw anything.
    IBM is still going to sell AIX on june 14. and beyond. If they case haven't been resolved before then, something I doubt unfortunately.
  • by Znork (31774) on Thursday May 15, 2003 @10:34AM (#5963940)
    Rather likely, indeed.

    From SCO's letter:

    "Commercial software is built by carefully selected and screened teams of programmers working to build proprietary, secure software. This process is designed to monitor the security and ownership of intellectual property rights associated with the code."

    Yeah. Right. Not in any proprietary software design process I've ever seen anywhere. I dont think I've ever even heard of any 'check so our programmers dont use other peoples code' phase.

    Frankly, the only kind of projects I've ever heard of even being aware of the issues are open source projects.
  • by ioexcptn (190408) on Thursday May 15, 2003 @11:26AM (#5964486)
    So looking at the SCO website, they have a section termed success stories [sco.com] that supposedly has many many success stories. Well, they dont list them all...you have to reload the page to see them. After roughly 50 reloads, I got 5, yes 5!!!, unique success stories. They claim at least 192! SCO can we see the other 187?

    In fact, one of them related the use of SCO Linux for a mobile carrier in Korea. Considerring the fact that SCO pulled all support for their Linux "product", I guess that wasnt such a success, now was it?

    I hate ungrateful sons of bitches...
  • by SpeedBump0619 (324581) on Thursday May 15, 2003 @11:39AM (#5964618)
    Hmm. I've seen this twice now, and it kind of bothers me. Standard disclaimers apply...IANAL.

    Distribution under anything but a NDA strikes me as incompatible with a Trade Secret. Distributing your own Trade Secrets under the GPL is likely to get a judge to laugh at you.

    I think this is called "poisoning the well" (per luxuriam). The basic idea is that someone will prevent you from making a defence by polluting your own resources (usually without your knowledge). I have no idea if it is illegal to do this in and of itself, but that doesn't matter at all.

    The fact of SCO's release of their IP under the GPL on day X does not prevent them from prosecuting violations of their property rights which occured prior to that date.

    Don't get me wrong, I completely disagree with SCO's stand here and their method of prosecuting the violation (not exactly defining the code under discussion), but that doesn't mean they don't have a legitimate complaint
  • by HiThere (15173) * <charleshixsn AT earthlink DOT net> on Thursday May 15, 2003 @12:05PM (#5964891)
    1) this case will say nothing about IBMs trustworthyness. IBM is defending itself. We may be beneficiaries, but it's defending itself.

    2) I don't interpret IBMs silence as ambivalence, but merely as looking for a good target. They aren't acting like they even feel threatened (though that *could* just be a poker face).

    3) IBM is not a monolithic entity. To the extent that I evaluate them as such, I'm more impressed by whether they offer Linux on their workstations and portables than by their rhetoric.

    4) (see point 1). IBM is the primary defendant. Everyone else is probably essentially safe, as nobody else is being charged with maliciousness.

    5) IBM would need to be stark mad to settle with SCO...unless it got their nuts as security, and possibly even then. SCO has threatend to pull the OS off of one of their systems. If they let someone get away with a threat like that, they'll have nuisance lawsuits forever.
  • Re:Errrrr.... (Score:3, Insightful)

    by magi (91730) on Thursday May 15, 2003 @03:04PM (#5966610) Homepage Journal
    Caldera HAD to know what was in the Linux kernel because their Linux distros use a special Caldera-patched version of the kernel. So it's not like they didn't look at the code, they had to in order to create a special patched kernel right?

    Why do you think that by just making a driver makes a programmer "know" the entire Linux code, what, a few million lines? What makes you think that same coder "knows" all the code owned by the company? Not to mention that the UNIX code was not actually written at SCO, so few there really "know" it.

    It's really silly if you think about it. Linux kernel is huge. Will you know every person living in Brazil just by visiting there, and know that none of those persons are illegal immigrants (or whatever) from your home country?

    Any judge would see the impossibility. IANAL, and don't know what the laws say, but I don't think that your argument would hold in court.

    Distributing the code in their own Linux may not be relevant. If you buy or sell stuff and the other party is found guilty of fraud (misleading you in the bargain), he is liable, and you retain your property and receive compensation. If you accidentally transfer money to wrong account, the receiver of the money must return it (in most cases anyway). The SCO case is similar in many senses.

    We must think about this threat to Linux deeper than that.
  • by Gleef (86) * on Thursday May 15, 2003 @03:28PM (#5966857) Homepage
    anshil asked:

    There is a trade secred [sic] law????

    As far I understood the trade secred protecty you in one way, for an undefined time. It's by keeping it a secred and how long you can keep it secret, thats all folks! (As far I have understood)


    Yes. I can't speak for other countries, but here in the United States most if not all states have some form of Trade Secret law. Most of them (including Utah, where the SCO suit was filed) have one based on the UTSA, a "Unified" law so that that there is minimal confusion in what the law is when you go from one state to the other.

    These laws essentially boil down to: if you have a piece of information that is important to your business, and you take reasonable measures to keep that information secret, then you get the following protections for your secret:
    1. If someone tries to distribute it without authorization, you can get the courts to stop them, and sue for damages
    2. If someone gets it without authorization, you can get the courts to issue an injunction against them using or redistribuing the information
    3. If a court case arises where this information is relevant, the court must take reasonable steps (eg. sealing the records) to protect the secrecy of the information


    The problem of counting on Trade Secret law is what I described earlier, once it's no longer secret, it's no longer protected.

    My theory on why SCO brought up the presence of Trade Secrets in this case is not stupidity (they have to know that they are unlikely to win a Trade Secret case here), but more because of Protection 3, above. By invoking Trade Secret law, SCO can play their cards close to their chest.

    They're probably hoping to get through the lawsuit without publically disclosing which code they allege infringes on their copyrights. This would prevent Linux supporters from comparing notes and filing briefings telling the court how full of it SCO is. Keeping the particulars of the case out of the public eye can only help SCO and only hurt IBM, so I assume that IBM is going to push for the case to be as open to the public as they can get away with. Since keeping the particulars hidden can also hurt Linux (nobody can remove the alleged threat until they find out what it is), I hope IBM succeeds on this point.

    I am not a lawyer. The above is not legal advice. If you have a trade secret to protect, I recommend you consult both a lawyer and an experienced security professional.
  • Re:Losing focus (Score:3, Insightful)

    by jedidiah (1196) on Thursday May 15, 2003 @07:21PM (#5968842) Homepage
    >> 5)Copyrights are not revoked through lack of due diligence.

    This cuts both ways. SCO distributed it's disputed IP under the GPL after they publicly claimed that Linux had been contaminated. Despite their clear concerns, they chose to distribute their IP under a "viral license".

    This is no different than if SCO had made their work public domain by mistake.

    Their prior lack of due diligence does not allow them to be an "indian giver".
  • by evbergen (31483) on Friday May 16, 2003 @03:11AM (#5970684) Homepage
    You can split a sandwich among many people; you cannot digest it in a collective stomach.

    That's why /intellectual/ property is different. Smart people understand this.

Mathematicians stand on each other's shoulders. -- Gauss

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