Hopefully the judge will take one look at this this [groklaw.net] and ask SCO exactly why they arn't prepared to say what they have on IBM.

Here is my favorite quote from that article:

But McBride, a self-described cowboy, isn't about to back down. He once had his administrative assistant return the call of someone who challenged McBride to a fight--to get a time and place. "We have developed thick skin," he says.

What do you think?

(1) These were some of the words off the magazine's cover. The entire title is: "Is SCO Group's Darl McBride THE MOST DANGEROUS MAN in the technology industry? With a lawsuit imminent, Linux users are about to find out.

--
Reference: "You May Be Next" by John Foley, InformationWeek, Nov 24. 2003, pp 20-22.

$CO sux0rz!! Linux r00lz!!

Truer words haven't been spoken. Every slightest rant (no matter how small or insignificant the speaker is) against (insert holy technology here) is put on the front page for all to read and publically decry, but then every move by (insert evil entity here) is also posted so we can all rehash the same arguments again and again and complain that (far superior technology) is not number one.

Anyone know of a more balanced news site? I'm getting tired of reading about how Open Source will change the world every day and why I should convert my manager.

I don't think this is the fundemental problem. This case needs to be talked about rationally and I think Groklaw (and in a way Slashdot) are providing a forum for this.

The problem to me is that SCO is obviously using the publicity to their advantage, both bad and good. Every time SCO is mentioned in the press, for good or ill, their stock starts climbing. And that's clearly what they are after. Everybody, including McBride, Yarro and their minions know the case is a fraud, but while the stock keeps climbing, it doesn't matter to them.

What we need to avoid is to talk about SCO just for the "tabloid" value inside the Linux community. You may have a point that some of this discussion borders on that, but as long as we keep to the purpose of revealing SCO's true intentions, then talking about SCO here is a good thing.

Precedent: Rudolf Diesel patented the Diesel cycle engine in 1898. One of the reasons that the far less efficent Otto cycle (4-stroke gasoline) engine was/is more widely deployed is that Diesel would only license his patent for what he considered 'best use', requiring that Diesel engines must inject fuel continuously into the combustion chamber thoughout the combustion/power stroke.

This dictated a much lower power:weight ratio in early Diesel engines, which is appropriate to stationary power genaration but represented a distinct disadvantage for traction-power and automotive use.

Diesel's approach to license was probably not the most lucrative either for himself or society at large, however the *property right* granted by patent (and copyright) law let him make that determination.

To my mind whether commercial EULA, BSD, GPL, Artistic, all licenses fundamentally serve the purpose of allowing the *Author* a degree of control over the application and distribution of his/her work.

This is also how we get an OSS environment where two different Authors (say Linus Torvalds and Richard Stallman) have the right to apply the same license (GPL) according to their own wishes.

Process rights are a good thing. SCO's making the best case it can but I really think it's going to backfire on them. Their rhetoric really doesn't stand up to analysis.

I'd like to point out that the work that Pamela Jones & Co. at GROKLAW is clearly of some real use to IBM in this case. another poster has already mentioned [slashdot.org] that IBM has specifically cited a transcription GROKLAW produced in their recent filing [tuxrocks.com].

I would also like to remind others that there's a little paypal donation button on the front page of GROKLAW [groklaw.net], as mauryisland pointed out elsewhere [slashdot.org].

click that button. give her a holiday bonus, just enough to make it hurt you a tiny little bit. and let's see just how robust PayPal's servers [paypal.com] are.

Then post to the main page when there's something really big coming, and otherwise let everyone else go on with the usual kernel rumours, Ogg design wins, etc. etc.

I enjoy GrokLaw a lot, and I'm (trying to) read /. for more general news items.

[Rant off :]

"We believe that the "progress of science" is best advanced by vigorously protecting the right of authors and inventors to earn a profit from their work." We should all believe that the "progress of science" is best advanced when "Authors" have the right to do with their property whatever it is they want to do -- consistent with the law, and so long as the property right is properly balanced. And we should all believe that the "progress of science" is best advanced when that right is "vigorously protect[ed]". But the owners of GPL'd software are doing no more than exercising this right, just as Microsoft would exercise its right. They are profiting from the right to choose the terms under which they release their software, and the terms they have chosen also have a great benefit to other software innovation. They exercise their property right; they and we benefit. But if we are to protect that property right "vigorously," then we should take steps to protect property owners from baseless lawsuits against their right to use their property as they wish. So when it comes to the matter of sanctions against the lawyers in this case, the judge might well want to consider how important it is that the property right of copyright owners be "vigorously" defended.

SCO idea of authors and inventors rights is that they have the right to sell them to SCO, or Microsoft, or some other company which is going to require the author to assign in perpetuity any rights they had to their work.

Darl and SCO repeatedly try to paint themselves as progressive, which certainly is not the case. In point of fact, what SCO seeks is a return to serfdom. During Feudal times serf's were treated as chattel, property tied to more property. They would routinely be transferred along with the property they lived on. Darl would like nothing better than a return to those days, and in fact has staked his company livelihood (and possibly his freedom) on attaining that goal. Except the new serf's are programmers, and the land they are tied to is the code, particularly the plot of code which is the Viscounty of Unix.

by receiving all versions and iterations of AIX and Dynix, SCO will have evidence of IBM's development of Linux in violation of its contractual and legal obligations.

In other words, SCO believes it owns AIX and Dynix, and that IBM used SCO's AIX and Dynix code to improve Linux.

On the other hand, SCO is or has been distributing software that was released under the GPL and BSD licences. They have voided their right to do so. They have allowed software released under BSD and almost certainly GPL licenses to be inserted into their Unix variant.

Under the DMCA and CA76, the FSF and UC can demand that they stop distribution of any Unix-like operating system until all GPL/BSD code is removed.

Suing SCO for violation of the Copyright Act might not be successful in court, but it could be. Even if the suit were to fail (or more likely, SCO go under before a trial), the publicity of such a suit would make it obvious that Open Source adherents are not anti-copyright. We just prefer a different EULA.

What's really wrong with SCO's position? I agree with Lessig:

In SCO's open letter [slashdot.org] [slashdot.org], they say:

... "copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge.... The profit motive is the engine that ensures the progress of science."...

Their argument is that the profit motive is what is important about copyrights. According to SCO, the intent of the author and his right to control the distribution of his work are a secondary side effect of the profit motive and our economy's need for him to profit from his work.

That twisted paradigm underpins SCO's business plan, their market strategy, and their case against IBM.

I believe it's time to sue SCO, in order to make clear that it's the author's right to control his work and who profits from it that matters, and not just his right to profit.

By the common view of what a copyright should be and provide, yes, perhaps open-source developers are surrendering rights. However, the copyright law that allows people to keep their source code proprietary and sell it is the same law that allows people to DISALLOW proprietary use of their code as well.

The GPL states that the licensed code may not be used unless the source code of that in which it is used is released. Acceptance of the license means that the person using the code is legally obligated, by copyright law, to release that source code. The real question should be whether or not it is legal, under copyright law, not only to deny the right to spread something freely, but also to deny the right to spread something for profit.

By my personal opinion, a copyright is a copyright, and the holder of said copyright should be able to put whatever stipulations on the license that he or she pleases. However, I'm not a lawyer, and I have no idea on what the actual legality of such an idea is.

I think that the more important fact is that even though this is the true crux of the problem, Mr. McBride is trying to obfuscate it in things like his letter, trying to portray the entire open-source community as somehow being inherently against U.S. copyright law. If you're going to put up that argument, Mr. McBride, first you'll have to show us that the GPL's unique use of copyright law is, in fact, not legal.

Say I am a fizzy drinks manufacturer. I want to know what Coca-cola's secret formula is. I start a case against them saying that they've copied my formula, and that they have to give me their formula so I can prove it.

Can you lay a proper foundation for your request? Does your product predate Coke? Did Coke's product change from something else to something that is close to your product? You do have to make a plausible argument for your claim that Coke stole your formula. In the case of trade secrets, even if you do get a chance to look at their formula in court in private, you may be constrained from talking about it (much less using it) outside of court.

I would imagine source code is esentially a trade secret. A competitor has asked IBM to hand over their trade secrets, because they may have copied theirs. Doesn't seem right to me. If SCO cannot provide some other proof that copying has occurred - for instance, evidence from an IBM employee - then I don't think they should be allowed to see IBMs trade secrets.

SCO is not asking IBM to reveal trade secrets; IBM has already done the revealing, the case is about whether IBM had the right to reveal them. SCO's foundation, weak though it may be, is the old contract between IBM and AT&T. In it, IBM may have agreed that anything they develop in a context that derives from the old UNIX is a trade secret and that AT&T (whose rights are now held by SCO) must give approval before IBM can reveal those secrets to third parties.

SCO has named specific technologies that IBM has released -- JFS is a clearcut example. JFS is clearly part of IBM's current AIX offering and the code has clearly been revealed by donating it to Linux. ASSUMING the contract is binding and that AIX is "derived from" the old UNIX, what remains at issue is the development history of JFS. SCO cannot know that history without access to IBM's internal documentation -- and US civil law allows them access to those records (discovery). Some of the current argument is over the degree to which IBM must organize the material -- have they satisfied the discovery rules if they simply dump 100M pages of documentation and old e-mail on SCO?

IBM wins this case if they can prove (ie, get the court to agree) that any of several different things are true:

• The contract is not binding, or
• AIX is not "derived from" the old UNIX after some point in history (and if the development of the particular features postdate that), or
• The features over which SCO is suing were developed in an environment not covered by the contract and ported to Linux from there, or
• SCO's distribution of Linux source that includes the code in question provided implicit approval for revealing the secrets.

Perhaps we should fill the SCO offices with these WMD's (which sound like biological weapons to me) and get Blair and Bush to declare war on them.