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Caldera Software Linux

SCO Might Sue Linus for Patent Infringement? 1154

Posted by CmdrTaco
from the does-it-bother-you-when-I-poke-you-here dept.
An anonymous reader writes "[Darl McBride, SCO's chief executive stated] that unless more companies start licensing SCO's property, he may also sue Linus Torvalds, who is credited with inventing the Linux operating system, for patent infringement." It's right at the end of the story and it's quite a statement.
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SCO Might Sue Linus for Patent Infringement?

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  • WTF? (Score:5, Insightful)

    by Verteiron (224042) * on Wednesday May 28, 2003 @07:06PM (#6062039) Homepage
    Ok, so what, exactly, are they planning to sue him for? It's not like he can be held responsible for what IBM may or may not have put into the kernel. Or can he?
    • Re:WTF? (Score:5, Insightful)

      by Artifex (18308) on Wednesday May 28, 2003 @07:28PM (#6062312) Journal
      Ok, so what, exactly, are they planning to sue him for? It's not like he can be held responsible for what IBM may or may not have put into the kernel. Or can he?


      The bigger question is, why does SCO think it can sue IBM for putting stuff into the kernel that SCO doesn't even offer? This has been covered to death the last few days, but jeez, SCO can't claim true enterprise scalability of any sort in its own products, so where can they claim the IP was theirs?

      Not to mention that if anyone has a claim to sue Linus, it's the people who created Minix, for creating a workalike - and even then, he didn't copy code. Go look at the UNIX heritage charts for a much better understanding.

      SCO is an emaciated, rabid dog nearing its death-frenzy howling and trying to scratch or bite as many others as possible. It's only natural for its foamings to get worse and its anger to increase when presented with images of people playing in the open-sourced software fountain (rabies induces hydrophobia, you know). If you can't shoot this rabid dog, grab your children and run away from it. If you wait a few days, it will have drowned in its own spew - but anyone coming near, especially investors, will find that even its carcass is less than worthless and should be avoided.
      • Re:WTF? (Score:5, Interesting)

        by Phronesis (175966) on Wednesday May 28, 2003 @07:57PM (#6062599)
        Not to mention that if anyone has a claim to sue Linus, it's the people who created Minix, for creating a workalike - and even then, he didn't copy code. Go look at the UNIX heritage charts for a much better understanding.

        You don't have to copy anything to infringe on a patent. I can infringe on the Unisys LZW patent by writing my own LZW code. All I have to do is use (whether by copying or by innocently reinventing) Terry Welch's algorithm during the next month [ffii.org] in the USA.

        Similarly, if Linus introduced into the kernel either his own code or code donated by someone else (IBM) that implements any algorithms for which SCO holds patents, even if the code in question comprises completely original implementations of those algorithms, then by redistributing the kernel without a license from SCO, Linus is infringing on SCO's patents.

        • by Ashtead (654610) on Wednesday May 28, 2003 @08:41PM (#6062960) Journal
          IANAL, but I have been involved in a patenting process and subsequent litigation. There was talk about the concept of independent invention, which means that if someone comes up with a solution that someone else has a patent on, the situation isn't a clear-cut matter of infringement.

          The next question to ask would be about the timing of this: Which specific functions and features of the kernel are under fire here? And when were these put into the kernel?

          And finally, isn't SCO becoming engaged in barratry here?

          • by BrokenHalo (565198) on Wednesday May 28, 2003 @09:11PM (#6063175)
            It seems to me that we've all heard a lot of noise from SCO, but I have yet to hear what they are claiming ownership to. Until they actually say what patents have been infringed and how, their claims are just hot air. If their claims have any validity, then why keep the details secret?
          • by sonofepson (239138) on Thursday May 29, 2003 @12:55AM (#6065012)
            Barratry was a new term to me, so I looked it up.
            According to Infospace.com (via opera dictionary lookup, handy feature that) it is:

            1. fraud by a master or crew at the expense of the owners of the ship or its cargo.
            2. the offense of frequently exciting and stirring up lawsuits and quarrels.
            3. the purchase or sale of ecclesiastical preferments or of offices of state. Also,barretry.


            Although the meaning in this context is #2. I suppose that since they are jumping headfirst into the middle of OS Holy Wars, #3 also suffices.
        • by darkheavy (78519) on Wednesday May 28, 2003 @09:02PM (#6063090)
          Similarly, if Linus introduced into the kernel either his own code or code donated by someone else (IBM) that implements any algorithms for which SCO holds patents, even if the code in question comprises completely original implementations of those algorithms, then by redistributing the kernel without a license from SCO, Linus is infringing on SCO's patents.

          Ok. It have been stated already that SCO has no patents nor IP related to their claims. They do have code, but that sale didn't involve the IP nor the patents involved in the development of that code.

          The really funny thing is that IBM, HP, Compaq (formerly Digital), Novell et all do have patents related to UNIX (and I'll bet they have patents over H2O methodus and aparatus). If SCO wants to get into that game they're going to suffer. A lot.

        • Implied license (Score:5, Interesting)

          by yerricde (125198) on Wednesday May 28, 2003 @10:11PM (#6063634) Homepage Journal

          You don't have to copy anything to infringe on a patent.

          However, if the alleged infringement occurs early enough in the patent term, it could be argued that the invention was probably obvious to anybody skilled in the art.

          then by redistributing the kernel without a license from SCO

          By distributing the Linux kernel under the GNU GPL, SCO granted an implied license to its patents to all recipients of SCO code.

        • by Dr. Evil (3501) on Wednesday May 28, 2003 @10:20PM (#6063730)

          SCO distributed Linux under the GPL. If Linus is guilty of patent violation, SCO is guilty of copyright violation.

          Section 7:

          If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

          http://www.gnu.org/licenses/gpl.html [gnu.org]

          Strange thought, don't you have to actually do something to violate a patent? The code in and of itself does not violate the patent. And if SCO violated Linus' copyright by distributing their patented code under GPL... then they're suing because Linus doesn't have a license... ugh.

          Ugh!

      • Re:WTF? (Score:5, Informative)

        by JosefK (21477) on Wednesday May 28, 2003 @08:06PM (#6062681)
        "The bigger question is, why does SCO think it can sue IBM for putting stuff into the kernel that SCO doesn't even offer?"

        http://linux.rice.edu/pipermail/rlug-discuss/200 0- August/000557.html

        The SCO v. IBM case arises from Project Monterey, which was a joint venture between SCO and IBM to port Unix to IA-64 or some such thing. IBM eventually pulled the plug, and focused instead on Linux.

        SCO's primary claims against IBM seem to be that IBM took code that had been either brought by SCO into the project, or (more likely) developed by/in conjunction with IBM as part of the project, and used it in its subsequent Linux development.

        So, even though SCO's products didn't (don't?) have the enterprise features they are accusing IBM of "stealing" from SCO, it seems to be their contention that the Project Monterey work was intended to develop such features, thus the claims for breach of contract and unfair competition.

        SCO claims of pre-existing IP violations in "every" Linux distro would have no bearing on the IBM case.
      • by Anonymous Coward on Wednesday May 28, 2003 @08:14PM (#6062740)
        Andrew Tanenbaum, the guy who wrote the operating system for educational purposes; some people who have taken operating systems classes may remember him as the guy that wrote their textbook as well.

        Actually, what's interesting is why Minix was written. AT&T had allowed the source code to UNIX to be freely distributed to universities, etc. Then someone realized that there was commerical potential in UNIX and they began restricting access to the source.

        Because it's frequently useful to have a functioning model at which to look when studying a subject, Minix was born to fill the missing educational void created by the commercialization of UNIX. It was designed to be big enough to be a real operating system, but small enough for one person to pretty much keep in his head at one time. Linux was created because there were a number of people who wanted to pile stuff into Minix which Tanenbaum didn't want there.

    • Re:WTF? (Score:5, Informative)

      by AstroDrabb (534369) on Wednesday May 28, 2003 @07:35PM (#6062371)
      IBM, Linux, or the rest have nothing to worry about since Novell announced that SCO has no patents on Unix and Novell still owns the IP.
      http://www.novell.com/news/press/archive/2003/05/p r03033.html
    • by Corpus_Callosum (617295) on Wednesday May 28, 2003 @07:51PM (#6062535) Homepage
      The Yahoo! Stock message boards are very active with major investors, partners and executives of each board's respective company. The SCOX board is reasonably active, but could use some of the strong, intelligent insight that is spread around slashdot on this subject.

      I think those of us that are so inclined should voice our support for Linux, Linus, Open-Source, etc... there as well as here. Let your voice be heard by the people that invest in SCO, run it and do business with it...

      Hell, even the trolls can have fun there...

      http://messages.yahoo.com/bbs?.mm=FN&action=l&bo ar d=1600684464&tid=cald&sid=1600684464&mid=9 062
    • Re:WTF? (Score:5, Funny)

      by two_center (676833) on Wednesday May 28, 2003 @08:15PM (#6062743)
      The threat to sue Linus is an "I'll get your little dog too" move. Can the flying monkeys be far behind? Hypothetical: if Novell shows up at the courthouse with a suit against IBM identical to SCO's, who gets to sue?
      • Re:WTF? (Score:5, Insightful)

        by Jeremiah Cornelius (137) on Wednesday May 28, 2003 @09:12PM (#6063185) Homepage Journal
        Gee.

        Sue Linus, for an implementation that mimics an API which is not under patent protection?

        Sue Linus, for an implementation of an API under the U.S. Government sponsored POSIX public specification?

        Sue Linus for the implementation of an API for which your claim to hold copyright cannot be legally documented?

        Even if the Linux kernel were a clone of Unix internals, the 1991-2 date comes before the U.S. was even clear that software could be patented. In FINLAND!!!!! outside the jurisdiction of U.S. legal bogosity.

        BTW: From when does this imaginary patent protection for the Unix kernel and I/O mechanism date? 1970? 1972? I smell expiration.

        • by siskbc (598067) on Thursday May 29, 2003 @10:11AM (#6067238) Homepage
          BTW: From when does this imaginary patent protection for the Unix kernel and I/O mechanism date? 1970? 1972? I smell expiration.

          Well, see, like you say, they don't even own it, so it doesn't matter if the patent was granted yesterday - Novell isn't enforcing it. ;)

          What they're doing here is cute though - they are so willful at mixing concepts that it's disgusting. They blatantly mix arguments that are only germane to patents with a trade-secret situation. They always refer to SCO OpenUnix as Unix (circleR), a trademark they don't own and isn't unique to them. They claim that Linux is in violation of trade secrets they couldn't have been a party to. Every other day they claim they have patents and copyrights - then they kind of admit they don't - but not really.

          I can't imagine their lawyers are that retarded that they can't make the distinction (in fact I know they're not). And they can't hope that IBM's are. Additionally, they can't be hoping still that IBM will settle, because IBM's foaming at the mouth now.

          The only possible conclusion is they're using their spotlight to spread as much FUD as they can before this thing goes to court and they get reamed. Of course, they will lose any credibility they might have had in the process, and will certainly lose a great deal of business.

          Something's making this "Suicide-by-IBM" gambit worth it - gee, I wonder what?

    • Re:WTF? (Score:5, Funny)

      by Zeinfeld (263942) on Wednesday May 28, 2003 @11:09PM (#6064253) Homepage
      Ok, so what, exactly, are they planning to sue him for?

      In other news John Ashcroft announced that terrorism charges might be brought against both motherhood and apple pie under the Patriot act. David Boies, representing the administration stated on behalf of his client, "These people have to learn that their actions have consequences".

  • by valisk (622262) on Wednesday May 28, 2003 @07:07PM (#6062049) Homepage Journal
    I think a 24% crash in SCOs stock price today shows what the market thinks of this news, and exactly how much Linus has to fear.

    The threat to get Linus is as hollow as the rest, no Judge will allow a suit to be brought when the ownership of the IP is in question, and given that Novell own a vast majority of the patents (832 unix and novell vs 117 Sco and Unix), according to the USPTO [uspto.org], the fact that Novell have taken some time and obviously a lot of expensive Legal advice before making such a series of claims vis a vis the ownership of the Unix IP and seems willing to step in the way of SCOs legal bullets, I'd say SCO's battle to steal Linux from the community has just got infinitely more difficult.

    • by gwernol (167574) on Wednesday May 28, 2003 @07:18PM (#6062195)
      I think a 24% crash in SCOs stock price today shows what the market thinks of this news, and exactly how much Linus has to fear.

      Although if I were Linus I wouldn't exactly take the market as my best legal opinion in the matter... IANAL and the M(arket) is sure as hell is NAL either.

      The threat to get Linus is as hollow as the rest, no Judge will allow a suit to be brought when the ownership of the IP is in question

      Like I said, IANAL, but I would have thought a judge would allow such a suit. After all isn't one of the principle functions of the civil court to decide exactly these sort of contract disputes?

      given that Novell own a vast majority of the patents (832 unix and novell vs 117 Sco and Unix), according to the USPTO,

      I don't believe the USPTO keeps track of changes of ownership of patent rights. Even if it did, this seems to be primarily a contract dispute not a patent one.

      the fact that Novell have taken some time and obviously a lot of expensive Legal advice before making such a series of claims vis a vis the ownership of the Unix IP and seems willing to step in the way of SCOs legal bullets, I'd say SCO's battle to steal Linux from the community has just got infinitely more difficult.

      I don't think so. It has got a little harder (hooray) but I don't think it has got that much worse. Even Novell's chief executive is quoted in the article as saying "We believe it unlikely that SCO can demonstrate that it has any ownership whatsoever in those copyrights" (my emphasis). That isn't the totally unequivocal statement I would have liked to hear.
    • by Bruce Perens (3872) * <bruce@perens.com> on Wednesday May 28, 2003 @07:18PM (#6062200) Homepage Journal
      SCO does not own 117 patents. Maybe they are mentioned in 117 patents, as an example of a Unix system. Mind your search parameters. They own only a handful of patents, and no significant ones.

      Bruce

  • Counter Suit (Score:5, Interesting)

    by rfmobile (531603) on Wednesday May 28, 2003 @07:08PM (#6062060) Homepage
    I suggest counter-suing for defamation of character. Just how much is an international reputation worth? Linus could end up owning SCO. Now *that* would justice. -rick
    • by Tackhead (54550) on Wednesday May 28, 2003 @07:38PM (#6062399)
      > Linus could end up owning SCO. Now *that* would [be] justice. -rick

      "Some people have told me they don't think a fat penguin really embodies the grace of Linux, which just tells me they have never seen a angry penguin charging at them in excess of 100mph. They'd be a lot more careful about what they say if they had."

      - Linus Torvalds.

      "Darl McBride, I'm pleased to have you as my new employee. Mr. McBride, could you please move two feet to the left. Yes, there. Perfect. No, you don't have to do anything else, just stand there."

      - What I imagine Linus' first words would be at the shareholders' meeting after he becomes the new majority shareholder of SCO.

    • by Ryan Amos (16972) on Wednesday May 28, 2003 @07:59PM (#6062618)
      Linus could end up owning SCO.

      So you mean he'd lose and owning SCO would be his punishment?
  • by rushfan (209449) on Wednesday May 28, 2003 @07:08PM (#6062061) Homepage Journal
    In short, Novel thinks SCO has lost it's gord, SCO knows they are hosed, and are creating MS style FUD by saying anything to get their lame company in the news....

    I hope Novell is right in:
    "We believe it unlikely that SCO can demonstrate that it has any ownership whatsoever in those copyrights," said Jack Messman, Novell's chief executive, in a statement Wednesday

    But anyway, I'd pay a couple of bucks, especially if we get a Pay-Per-View event of Linus kicking McBride upside the head.

    Rushfan
  • by jdehnert (84375) <[moc.trenhed] [ta] [trenhedj]> on Wednesday May 28, 2003 @07:08PM (#6062062) Homepage
    Think I'll go pattent "Hello World!"

    I always wanted to name a band "Special Guest" too.
  • by Nom du Keyboard (633989) on Wednesday May 28, 2003 @07:08PM (#6062071)
    McBride added that unless more companies start licensing SCO's property, he may also sue Linus Torvalds

    SCO really does seem to want to make an enemy out of absolutely everyone left on Earth.

    Excuse me, but didn't Linus actually write Linux from scratch to duplicate the functionality of the existing Unix systems -- or do I misremember those early days?

  • Is this possible? (Score:5, Interesting)

    by man1ed (659888) on Wednesday May 28, 2003 @07:09PM (#6062073) Homepage Journal
    What patents still exist that cover Unix? Don't they expire after 17 years? I don't think patents filed for "time sharing systems" or "virtual memory" in the seventies are still applicable. Besides, if this is valid, why are they not also suing everyone else? I know Sun licensed the Unix code to make Solaris, but did they license patent rights as well? What about FreeBSD? GAAHHH! How can SCO even claim that this nonsense is valid?
    • Re:Is this possible? (Score:4, Informative)

      by bofkentucky (555107) <bofkentucky@g[ ]l.com ['mai' in gap]> on Wednesday May 28, 2003 @07:35PM (#6062372) Homepage Journal
      IANAL (/code needs a macro for this) but my understanding is that the 4.4BSD-lite release is completely clean and can not be sued as part of the UCalifornia Board of Regents vs. AT&T settlement. ATT got to keep all of the nifty 4BSD networking code (Bind, TCP/IP stack, real low level stuff all the way through telnet and gopher clients) without displaying the BSD advert clause in return. This split happened after the creation of Minix (and Linux), and should have absolutely no bearing on this case, with the obvious reality of modern *BSD's/OSX/Darwin (all derived from 4.4-lite) being completely free of fear of SCO on Unix IP infringement claims.
  • Save Linus (Score:5, Interesting)

    by ShwAsasin (120187) on Wednesday May 28, 2003 @07:09PM (#6062085) Journal
    If SCO decides to actually sue Linus, I hope all the server companies (or atleast the big ones like IBM, Red Hat, Penguin Computing, etc.) will help with his legal costs. After all, he did give them a great product without them do all the R&D themselves.
  • by graveyhead (210996) <`fletch' `at' `fletchtronics.net'> on Wednesday May 28, 2003 @07:09PM (#6062088)
    A while back, I posted this [slashdot.org] joke:
    I don't know which planet YOU are from, but in my book SCO (the f**kedcompany formerly known as Caldera) is an extremely innovative company. I mean, when I installed their version of Caldera Linux back in 1998, they had a game of Tetris that you could play while the installer ran. Tetris! WHILE YOUR OS INSTALLED! Now, if that's not real innovation worthy of IP protection, I don't know what is. So don't you dare come along mister and say that SCO has no real effective Unix IP to license :P

    The thing is, I got two interesting replies that went largely unnoticed:

    dvNull (235982) [slashdot.org] wrote:

    BTW i knew people who worked for The Tetris Company who planned on making a case against Caldera for infringing on the Tetris copyright.

    and An Onerous Coward (222037) [slashdot.org] wrote:

    I would be so happy if IBM stole that bit of IP and got it into every distro. That would be schweet, and well worth another billion dollar lawsuit.

    OK, so why not? I second Onerous Cowards' motion. Except, instead of stealing, IBM should immediately obtain a contract with The Tetris Company to redistribute Tetris. Then they should file lawsuits against SCO for infringement. Even if the lawsuits are frivilous, it would still be a thorn in the side of SCO when it is realized publicly that they very blatantly stole the IP from The Tetris Company.

    On a side note, it seems to me that Caldera has a serous history of copying technology... DOS and Tetris are the ones I know about, plus they came up with a Linux distribution... ooh there's originality at work. Also, I believe they bought those rights to UNIX (acquired when they bought the original SCO, IIRC) How can this company turn around and sue IBM for infringement?! It doesn't make any sense. As far as I can tell, that install+game really is the most innovative they've ever been as a company. God that was brilliant. I hate waiting.

    • by Watts Martin (3616) <layotlNO@SPAMgmail.com> on Wednesday May 28, 2003 @07:42PM (#6062435) Homepage

      Caldera acquired DR-DOS from Novell, which Novell got from Digital Research. While I agree with your main point, it's important for old geeks like me to clarify this sort of thing. DR-DOS was the legitimate descendant of CP/M (it's actually the renamed CP/M-86). If you know your MS-DOS history, you'll know it came from QDOS, which was Seattle Computer's unauthorized 8080-to-8086 translation of CP/M. So in a real sense, MS-DOS is in fact a copy of DR-DOS, not the reverse.

      It's also worth giving credit where credit is due. Tetris aside, Caldera was really the first company that pushed concepts Linux users take for granted now like easy installs, file and network browsing, etc. They may have dropped the ball years ago, but they were the first "Linux-focused company" to put the ball into play. I don't consider the current SCO to have much to do with that Caldera, though.

  • by Andorion (526481) on Wednesday May 28, 2003 @07:09PM (#6062089)
    I'm suing everyone for everything. Details at 11.

    ~Berj
  • by sumbry (644145) on Wednesday May 28, 2003 @07:12PM (#6062122) Homepage
    I've been an avid FreeBSD user for years, and I remember when this same exact thing happened with AT&T vs. BSD years ago. I would seriously avise the Linux camp not to take this threat lightly (as everyone seems to be doing) because even if you are in the right, this could screw up Linux distribution for years.

    All SCO has to prove is that portions of code that it licensed for AIX to IBM ended up being used in Linux. This is alot easier than you think. All it takes is ONE PROGRAMMER out of the thousands that contribute code to have done this, for the Linux camp to be screwed. Since no one is out there auditing Linux code looking for stuff like this - how hard do you think it is for one person out of thousands of developers to have done this?

    Look at how much code already is shared between the various BSD and Linux flavours already. Kernel drivers often have huge chunks of code that are just copy and pasted from one flavour to the next.

    BSD had the jump on Linux way back in the day but has less marketshare now because of the same BS that happened with the AT&T suit oh so long ago - and we ended up winning that suit!

    Be wary. This issue is not as cut and dry as all you may seem to believe. If SCO can prove that one person messed up, Linux is screwed. All it takes is 1.

    • Since no one is out there auditing Linux code looking for stuff like this


      Actually, there's a team of people at IBM (and I'm sure a few other companies) doing exactly that.
      • by dfung (68701) on Wednesday May 28, 2003 @08:12PM (#6062723)
        I totally agree with you on this which actually is bad in the (often stupid) court system.

        IBM can't afford not to audit and maintin source code that they licensed in a total clean-room situation. If an IBM employee violated that contract, then IBM could be in a bad hole (but see more below). Engineers may make mistakes, but organizationally, IBM "knows better" than to allow a breach like this to get out the door.

        A slimy SCO lawyer will certainly point out that IBM has extensive code reviews specifically to prevent this sort of breach, therefore this violation must have been intentional and systemic from IBM management - a more serious situation.

        Of course, IBM doesn't mess around with little worms like SCO on something like this. In addition to the group that's working on a direct defense, there's a small army of IP specialists that at IBM that are working on kneecapping SCO before they even get to the courtroom. IBM has tens of thousands (might well be over 100,000 these days) of patents that cover every aspect of computing since they were a cash register company. Now, maybe SCO has been totally clean and not infringed or violated some juicy patent from 1945. Maybe SCO has added so little that there's no conflict anywhere.

        But if they haven't carefully been reviewing everything that IBM has patented since before their engineering department was born, there's a pretty good chance that the may be in violation of a good amount of IBM's IP. Then SCO will get a nice letter from IBM with about 30 pages of infringments from their crappy installer and perhaps they'd like to sit down and set up a cross-licensing agreement to resolve these issues before they commit themselves to a literal lifetime of defending themselves in court.

        *That's* how an IBM or Microsoft plays ball. And there will be no FUD in the halls of SCO when IBMs says it time to quit playing.

        • by willtsmith (466546) on Wednesday May 28, 2003 @09:14PM (#6063201) Journal
          Yeah,

          We (Tivoli Indy) had an IBM IP guy come in and explain a lot of this stuff. He basically explained the strategy of patenting anything and everything possible.

          Effectively, if someone sues them they search their IMMENSE inventory of patents and find things that apply (even remotely). After that, it's a simple matter of cross-licensing or annihalation via litigation.

          BTW, IBM is the #1 patent holder in the US. They file more patent applications than ALL OTHER parties in the US. They have a VERY NICE incentive program for folks to patent what they do. And they DO take advantage of it.
    • by JoeBuck (7947) on Wednesday May 28, 2003 @09:00PM (#6063075) Homepage

      Back in '92, someone made this exact argument to me about the AT&T/BSD case. He was wrong: the BSD people had screwed up (there were several files that had tainted AT&T code), but BSD won anyway.

      You forget an important lesson of the AT&T vs BSD case. It was found that AT&T itself was engaging in serious copyright violation (removing all the University of California copyrights from their code). They had to settle.

      Similarly, SCO will be found to be violating all kinds of IP rules itself: IBM patents (you can't sneeze without violating an IBM patent, they have so many), remaining BSD code with copyrights stripped, GPLed code copied into their Unix product, etc. Then they have the problem that they don't own the copyright!. Novell does.

      Finally, there's a huge difference: the GPL, and the fact that SCO itself distributed and worked on Linux for years. They can't claim ignorance, as their own engineers worked intimately with the Linux kernel and OS, modified it, and distributed it. By doing so, they granted a GPL license on what they distributed to the world. They can't revoke that.

  • by Bruce Perens (3872) * <bruce@perens.com> on Wednesday May 28, 2003 @07:16PM (#6062165) Homepage Journal
    This is by far the most irrational thing I've seen from SCO. Go to www.uspto.gov and search the patent collection online. Look for "Santa Cruz Operation", "SCO", and "Caldera" as patent owner. They were granted one patent last month, and not a significant one. There isn't much else there.

    A lot of patents owned by other people mention SCO as an example of a Unix system. That is by far the largest source of mentions of their company name in the patent database.

    So, where's the ammo in Darl's gun? No patents. No copyrights for the stuff he said he owned. No trade secrets, as far as I can tell.

    And then, to threaten Linus Torvalds as an individual sounds especially whiny. multi-Million-dollar corporation sues San Jose programmer who has made a life of giving his work away for free. SCO has descended to playground-bully level.

    Karsten Self revealed this interesting tidbit from SCO's 10K report: [sco.com]

    The Company has an arrangement with Novell, Inc. ("Novell") in which it acts as an administrative agent in the collection of royalties for customers who deploy SVRx technology. Under the agency agreement, the Company collects all customer payments and remits 95 percent of the collected funds to Novell and retains 5 percent as an administrative fee. The Company records the 5 percent administrative fee as revenue in its consolidated statements of operations. The accompanying October 31, 2002 and 2001 consolidated balance sheets reflect the amounts collected related to this agency agreement but not yet remitted to Novell of $1,428,000 and $1,894,000, respectively, as restricted cash and royalty payable to Novell. The October 31, 2001 balances were reclassified from cash and equivalents and other royalties payable to conform to the current year presentation.
    This is SCO's admission that Novell owns Unix System V, all revisions - that's what they mean by "SVRx", and pays Novell 95% of the royalties. SCO gets to keep 5% as administrative agent.

    That proves the Novell allegation.

    SCO stock dropped from $9 to $6 today. I'm surprised it closed that high.

    Bruce

    • by valisk (622262) * on Wednesday May 28, 2003 @07:22PM (#6062242) Homepage Journal
      Yeah, I was watching the stock price plummet, interestingly the bulk of the fall took place after this comment from McBride, which indicates that nobody takes him seriously, I imagine SCO stock is facing a hammering tomorrow.

      It's a great job you, esr and the rest of the community have done over the past few weeks, thank you and I hope we can now clean Sco's clock for them :)

    • by GGardner (97375) on Wednesday May 28, 2003 @07:27PM (#6062301)
      According to Novell, the patents are assigned to Novell, and there are a bunch of patents there, though nothing jumps out as an obvious "Unix" patent. I'd just like to know which patent they are talking about. It seems contrary to the whole patent system not to mention which patent you claim someone to be violating.
    • by twitter (104583) on Wednesday May 28, 2003 @07:33PM (#6062355) Homepage Journal
      Does this mean that 95 cents of each MS $ of it's undisclosed "Unix" licensing fees are going to Novell? Does M$ know this?
    • Spin doctor (Score:5, Interesting)

      by mao che minh (611166) * on Wednesday May 28, 2003 @07:46PM (#6062478) Journal
      I greatly enjoyed the SCO call session earlier. I only jumped in near the end, so I'm not sure exactly who it was that was representing SCO at the time - but he was one serious spin doctor. He adeptly deflected all blame, made it sound like being in the business of sueing people over IP (which is all SCOSource does) was a noble and legitimate business model, and even made a valiant attempt to prove that SCO, not Novell, actually owns the rights to Sys V. I couldn't believe how casually the callers accepted his rubbish as fact.

      I wonder what the spin doctor would have to say to your above post. That's some pretty damning empirical evidence that disconfirms everything he claimed.

      This keeps getting better. I can't believe that something concerning intellectual property, UNIX and Linux, and websites full of people that like to debate the effectiveness of Python over Perl, can be this damned entertaining.

  • Which Patent? (Score:4, Insightful)

    by GGardner (97375) on Wednesday May 28, 2003 @07:22PM (#6062241)
    For a long time when these people mentioned IP, we thought they meant copyright infringement, not patents, but now there's all this talk about patents. However, no one lists which one(s).

    There's the famous 4135240 setuid patent [uspto.gov], which Bell labs granted to the public domain, and which has expired by now anyway.

    Novell gave us a clue, by pointing out that some patents might be in their name. But searching [uspto.gov] for Novell and Unix on the USPTO web site yields 62 patents. Most of these seem like they came from work on NetWare, but it is hard to tell for sure. Looking through these patents shows how bogus the US patent system is -- I quickly persued several at random, and every one was either an obvious technique, or being violated all over the place, or both. (IANAL).

    The first patent returned by the search (6,546,433) lists "PowerBuilder 5 Unleashed!", by Sams publishing as reference material. Frankly, if I were a patent examiner, this would be evidence alone to reject the application.

  • by linuxguy (98493) on Wednesday May 28, 2003 @07:25PM (#6062279) Homepage
    > "McBride added that unless more companies start licensing SCO's property, he may also sue Linus Torvalds, who is credited with inventing the Linux operating system, for patent infringement."

    I pictured Darl McBride holding a gun to a stuffed penguin's head and shouting to the crowd :

    "Give me your money or the Penguin gets it!"

  • by El_Ge_Ex (218107) on Wednesday May 28, 2003 @07:26PM (#6062294) Journal
    This is better than Reality TV!

    Just when you thought you knew how the story would end (with IBM buying SCO to quit being annoyed by them). SUDDENLY A PLOT TWIST! Novell could end up getting SCO for FREE!!! :)

    This is the best Reality Show yet!
  • by astrashe (7452) * on Wednesday May 28, 2003 @07:29PM (#6062313) Journal
    You'd be surprised at what judges allow. The basic reality that litigation costs money, and that frivolous suits do a lot of damage to people hasn't really sunk in.

    It's amazing, when you think about it, that there haven't been more lawsuits. Not because there are grounds for them, but because it's a convenient way to harass people.

    The community needs to come up with a way to respond to this incident, and to other things like it.

  • by bninja_penguin (613992) on Wednesday May 28, 2003 @07:31PM (#6062331)
    Darl McBride, SCO's chief executive stated] that unless more companies start licensing SCO's property, he may also sue Linus Torvalds,
    Isn't that outright criminal?? That's quite close to a criminal taking an innocent bystander in a bank, and saying, give me all the money or this bystander gets it in the head. That's usually called hostage taking, and carries a charge of kidnapping. Whereas in the SCO case, (I'm paraphrasing) "People better start buying licenses from us, or we'll go after Linus" is called extortion or, as the case may be, blackmail. If SCO has legitimate claim to sue somebody, they should sue, but to use threats against someone to get some other person to do something is illegal. Good God SCO, WTF is up with you?? At first I was skeptical of you, then I was disgusted with you, earlier today I was laughing at you, now, Jesus H Christ man, you people are treading on some seriously thin legal ground. Are you sure you have any legal counsel?? Outright extortion attempts are liable to get you some serious jail time that even Microsoft couldn't buy you out of. Give up now, while you still have a chance to at least do time in "Club Fed" for SEC violations and lying about IP ownership, don't push it until you do serious time for criminal acts.......
    Aww, what am I saying, keep it up you punks, then you can spend some "quality time" with felons who'll treat you like the bitch you are.
  • by Humunculus (584885) on Wednesday May 28, 2003 @07:33PM (#6062347)
    "McBride added that unless more companies start licensing SCO's property..." So how do we know which supposed part of Linux is SCO's property, if they don't tell us ?

    If I must buy a licence, I at least want to know what I am getting for my money, and what is contracted for, yes ?

    Rob. "For Every Pleasure There's a Tax".

  • by Anonymous Coward on Wednesday May 28, 2003 @07:39PM (#6062407)
    Let your representatives in the EU, which is considering software patents, know about this,as an example of why software patents are a BAD IDEA! A lot of European cities (Munich comes to mind) have shown a shining to Linux, and software patents could leave them without that choice!
  • June 1, 2004. Santa Cruz, CA: SCO threatens to sue yet more icons of goodness and decency In yet another move calculated to antagonize virtually the entire world, SCO announced today that they would pursue multi-billion dollar lawsuits against basketball legend Michael Jordan, all kittens less than a year old, and Jesus Christ, for failure to pay royalties on all revenues that "might even conceivably be gained by exploiting our intellectual property in some fashion or another." SCO CEO McBride, speaking from behind the door of a reinforced bunker in an undisclosed location, stated that although none of the parties have used UNIX or Linux as far as he is aware, the decision was made to pursue litigation anyway "for the hell of it. I mean, we're already suing fifty thousand parties as it is, from IBM to a rusty tricycle in Ai, Alabama. What's three more?" The last year has not been good to SCO. Novell and IBM both filed $10 billion lawsuits against the company, and their stock was delisted after the share price dropped from $8.30 a share to about eight cents a share. This led SCO to file a series of bizarre lawsuits against figures in the Open Source and computing world, including Eric Raymond, Bruce Perens, Richard Stallman and Tux the Penguin. Eventually, SCO ran out of people in the computing world and started targeting smaller, less fortunate users and groups, starting in early 2004 with a class of 12th graders in Portland, Oregon, for maintaining a Linux laboratory as a school project. Starting from there, they began to sue "everyone conceivable" who might have derived profit, use, or fun from Linux. The public reaction has been overwhelmingly negative. Two months ago an unknown terrorist organization detonated an atomic bomb over SCO headquarters in Orem, UT, and then immediately received a pardon from US Attorney General John Ashcroft. Vigilantes and bounty hunters now scour the Rocky Mountains for company employees, who fetch rewards of $1000 to $1,000,000. SCO executives are featured every night on FOX's "America's Most Wanted." Last week, Time named McBride the Most Hated Man in America, beating out even Osama Bin Laden and Michael Bolton for the title. "We're not discouraged," said McBride. "Eventually, the judge will see things our way and we'll start collecting royalties. And then the world will be MINE! ALL MINE!" McBride then broke out into hysterical laughter, which continued into the lonely night.
  • by bwt (68845) on Wednesday May 28, 2003 @07:47PM (#6062492) Homepage
    I keep posting this, but nobody seems to get it. SCO as a **distributor** of the linux kernel has committed copyright infringement UNLESS they have properly licenced all copyrights from which it is derived. If somebody else (IBM or Linus) creates a work which is improperly licenced, but is derived from GPL work, then SCO **STILL** must abide by the GPL in order to distribute a deriviative of the GPL portions.

    In order to do that, they must abide by the clause (clause 2b) which requires them to licence "as a whole" to "all third parties" (which certainly includes Linux and IBM) the works which they distribute under the terms of the GPL, assuming they either modify the source (clause 2) or distributed binaries (clause 3). This is not compatible with patent enforcement (vs Linus) or with trade secret protection (vs IBM).

    Clause 6 states that no "further restrictions" are allowed. Clause 4 moreover states that any attempt to "otherwise ... sublicense or distribute" the work will "terminate your rights under this License".

    Finally, Clause 5 states that "by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it", which implies that SCO has accepted the GPL by distributing Linux, which even under SCO's extreme viewpoint is inarguably "based on" GPL works.

    Linus should and frankly MUST sue SCO for copyright infringement for distributing a derivitive of his work without a licence. In fact, any other kernel contributor could do the same so long as their original work is included in what SCO has distributed. It does not matter if SCO wilfullly commited copyright infringment (it is still infringement), though it is untenable to call it unwilfull after they began publicly proclaiming to retain rights to elements of Linux.
  • by SphynxSR (584774) on Wednesday May 28, 2003 @07:52PM (#6062544) Homepage
    It is called a cluster fuck.
  • by Nice2Cats (557310) on Wednesday May 28, 2003 @07:59PM (#6062615)
    What I really, really love about this story is how the CBS MarketWatch journalist displayed his complete lack of understanding for Linus' importance in the IT world and stuffed the threat of a law suit in as an afterthought at the bottom line. I've lost track of how many magazine covers Linus has been on, his name is mentioned in just about every article on Linux, he even has a frigging biography that you can buy in just about every major bookstore in the planet -- and CBS hides it in the last line. Beautiful.

    Makes me want to go back and see how CBS did Lady Di -- Traffic was heavy today in Paris, France, with light rains causing trouble for inexperienced drivers (...) In one of the day's many accidents caused by excess speed and driving under the influence, Lady Diana of Great Britian was killed. Light showers are expected in Roissy in the north of the city tomorrow with evening highs at around...

    Or maybe the death of Christ: Two common criminals died today as Roman justice rammed home its message of no tolerance [no zero, remember] with iron spikes through their hands and feet (...) The two men's crosses were separated by that of Jesus Christ, Saviour of Mankind, who also died (temporarily). The Jerusalem branch of amnesty imperium romanum condemned the two criminals' execution as...

  • by leeet (543121) on Wednesday May 28, 2003 @08:07PM (#6062683) Homepage
    SCO should sue his mother for giving birth to such an evil! Giving away software for free, what kind of idea is that! :)
  • Granted this is civil... but look at what Adobe and the US criminal justice system tried to pull off with Dimitris Sklyrov. IMHO these issues are related because the legal system is now being employed to harass and threaten programmers. Any one of us can be a target. 10 years ago we could pursue our careers with very little threat of a law suit. Today - if one has a success then the question becomes how many times over will we be sued.

    The whole issue illustrates how fucking preposterous the US legal system has become and other countries are planning to follow suit. Of course we also have countries like Norway and the issue of the DeCSS and Joh Johanson and I have no idea what label should be stapled to this mess. It would be simpler to just take the lawyers involved out behind the barn and get rid of them! But the horrible thing is that the victims of this perverted system are expected to finance it. Next time you are in a courtroom ask yourself of all the people in there - which ones are not being paid?

    Here we have a threat to sue an individual (Linus) because he used his own ideas... ideas that apparently an unrelated individual manages to patent in a country (USA) that the person (Linus) doesn't live in.

    Then after this flight of stoopidity - people come forth and suggest they will donate to the defense fund. Of course - this simply subsidies the US lawyers who collectively created the problem in the first place.

    The bottom line is that this is getting right fucking crasy! Somehow we need to figure out how to counter this.

    There are two sets of laws here that are working against us. First is patent law which as it is currently implemented has the following consequences. 1) if you own a valid patent and a large company wants to use what you invented - they will simply claim your patent is invalid and bankrupt you in the courts. 2) if they own an invalid patent then you cannot afford to fight them in the courts. Thus - you cannot do your job. You cannot pusue your career. Here we have intellectual feudalism where the sherrif of cyber notingham tries to turn you into a peasant.

    [read up on Leo Farinsworth if you doubt this - he invented television and died a broken man - bankrupt as well - because RCA fucked him over in the courts]

    Then the second set of laws are in the same group as the DMCA where we sometimes face criminal charges because perhaps someone wants to play a CD or a DVD and does not want to use software from Microsoft to do it.

    -----------

    Patents are only valuable to large companies and they are only valuable because they can be used to restrain trade. Given this - large companies pool their patents in a defacto free patent zone. Those on the inside are more or less protected and do not run the risk of litigation. Anyone on the outside is fair game. What a wonderful little oligopoly eh?

    Maybe "we" need to start playing this game. Suppose we organised an Open Source Patent Association and paid a feee like $100 bux to join it. This would create a pool of funds whereby the "best" ideas in the open source community could be patented. All members of the association would recieve protection and access to any and all patents. Any closed source shop would be billed or face court action -or- have to pool their patents in order to join.

    Since most of the great ideas are invented in the open source community - in short order this association might have a rather wicked sheaf of patents and this could be used to ensure that members of the open source community cannot become victims of bad faith litigation.

  • by ikluft (1284) <ik-slash.thunder@sbay@org> on Wednesday May 28, 2003 @09:54PM (#6063483) Homepage
    But if they harass Linus, it's travel time! I have some vacation time available at work and would show up with other protesters to picket outside SCO's headquarters [sco.com] if that helps put some pressure on them. We can keep piling on the pressure from different directions if they want to play a PR game. We'd make sure the local media in Salt Lake have enough advance notice to get their cameras warmed up while we're enroute.

    Salt Lake City is easily accessible by air (a Delta Airlines hub.) It's a 2-hour non-stop flight from any of the SF Bay Area's three major airports. Or a 1-1/2 day drive if you prefer a road trip.

  • by buss_error (142273) on Wednesday May 28, 2003 @10:45PM (#6064015) Homepage Journal
    because I've got a few hundred bucks in the bank whose first stop will Linus's legal defense fund.

    After the judge laughs SCO out of the court, I've a few hundred more for the legal OFFENSE fund...

  • by Marsala (4168) on Wednesday May 28, 2003 @11:04PM (#6064216) Homepage
    Tell you what, folks. If no one comes down here to Crazy Darl's Unix Emporium and buys a license in the next hour, I'm gonna club this baby seal. That's right, I'd club a baby seal to make a better deal. And I'll do it, too... cuz I'm Craaaaazy Darl.
  • by Piquan (49943) on Wednesday May 28, 2003 @11:41PM (#6064509)

    For those who have forgotten, Halloween VII was a leaked memo from MS dated Sep 2002. It was a survey report, discussing what types of FUD were most effective, and where FUD was backfiring. From this:

    Direct attacks of OSS and Linux are NOT highly effective. Messaging that discusses possible Linux patent violations, pings the OSS development process for lacking accountability, raises the specter of possible security flaws, and the like are only marginally effective in driving unfavorable opinions around OSS and Linux, and in some cases backfire. On the other hand 'positive' OSS and Linux messaging, i.e. access to the source code, the price, lower TCO, the ability to freely make copies, and the like drive very favorable opinions around OSS and Linux, both across geographies and audiences.

    "Linux patent violations/risk of being sued" struck a chord with US and Swedish respondents. Seventy-four percent (74%) of Americans and 82% of Swedes stated that the risk of being sued over Linux patent violations made them feel less favorable towards Linux. This was the only message that had a strong impact with any audience.

    And later:

    Messages that rely on an abstract discussion of intellectual property rights are not effective.

    The discussion of IP rights needs to be tied to concrete actions.

  • by Phoenix666 (184391) on Thursday May 29, 2003 @12:02AM (#6064680)
    SCO announced today that after Linus, they're going after von Neuman for having invented the computer. "It's clear that his research was specifically designed to lead to the machine which is responsible for violating our intellectual property rights," SCO spokesmen were quoted as saying.

    When asked if SCO had considered that without von Neuman's work they wouldn't have any intellectual property to begin with, the spokesman chided the journalists present for splitting hairs and using legal mumbo jumbo to confuse the issue. "The fact is, everyone in the world owes us a living, and they better pay up before we sue the bejeezus out of them. We have legions of lawyers ready and waiting."

    The interview was cut short when a copy of an otherworldly book dropped out of the sky and landed on the stage with a thump. When examined it appeared to be an almanac or encyclopedia of otherwordly origin, and curiously enough it had fallen open on the following entry: "SCO: a dirty bunch of swindlers whose backs were first against the wall when the revolution came."
  • Tip of the iceberg (Score:5, Informative)

    by Ogerman (136333) on Thursday May 29, 2003 @12:44AM (#6064939)
    What many people don't realize is that there are literally tens of thousands of bogus patents out there relating to all aspects of software, interface designs, methods of data communication, etc. The ugly reality is that the USPTO pretty much rubber stamps everything that comes their way without much review. If you look hard enough, pretty close to every substantial piece of code in existance, Open Source or proprietary, likely violates somebody's nonsense patent. While these bogus patents are rarely enforced, the SCO situation is proof that the danger exists, even at an 'unfounded threat' level. But as proprietary software empires fall to Free alternatives, we will quite likely see more of this nonsense.

    The long and short of it: our basic freedoms, especially speech, are being squelched by overzealous patenting. You cannot write software today without worrying about accidentally "re-inventing" or bumping into somebody's supposedly patented idea The modern patent system has decayed precisely into what Thomas Jefferson envisioned when he wrote: "..For to embarrass society with monopolies for every utensil existing, and in all the details of life, would be more injurious to them than had the supposed inventors never existed; because the natural understanding of its members would have suggested the same things or others as good." AND.. "the abuse of frivolous patents is likely to cause more inconvenience than is countervail by those really useful"

    Software patents must be eliminated. All of them. They are a threat to free speech and expression. They are a threat to innovation. They are a threat to the Open Source movement. Software patents are by very nature trivial--something the USPTO is not supposed to allow.

    With that in mind, here are some links to get you started on some anti-software-patent activism:

    http://lpf.ai.mit.edu/Patents/patents.html
    http ://www.petitiononline.com/pasp01/petition.html
    http://antipatents.8m.com/software-patents.html
    http://www.researchoninnovation.org/patent.pdf
    h ttp://www.freepatents.org/
    http://petition.euroli nux.org/index_html?LANG=en

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