Linux Kernel Code May Have Been in SCO UnixWare 455
Random BedHead Ed writes "Groklaw has some interesting new information online. In an entry today,
PJ has posted the Deposition of Erik W. Hughes (PDF), a SCO employee. Hughes' 2004 testimony reveals that the Linux Kernel Personality (LKP) of UnixWare somehow used kernel code. Exactly how it was used is not clear. UnixWare was released under a proprietary license, but the General Public License under which Linux is distributed requires derivative works to use the same license. As PJ says, it's "now apparent why SCO tried to say the GPL is unconstitutional" back in 2003."
Far from certain (Score:5, Informative)
Mirrordot to the rescue! (Score:4, Informative)
Docs being unsealed by parties (Score:3, Informative)
Since then, both IBM and SCO have been releasing court filings that were originally filed under seal.
You will note, if you read the PDF, that not all pages are available. Presumably, that is the way it was released by the courts, but that is not completely clear.
Preliminary Injunction (Score:5, Informative)
If I understand the way copyright law works, this would be more than enough to let anyone with a registered copyright on part of the Linux kernel subpoena the source for LKP to check for infringement.
Should there in fact be apparently-infringing material there, then the copyright owner could get a preliminary injunction forcing SCOX to cease and desist immediately, and very likely an order recalling all licensed copies with infringing material.
Now, there would be a bond required but otherwise PI for infringement is dang near automatic. So a company with registered Linux kernel contributions and a bit of money could pretty much finish off SCOX as a software vendor by forcing their users to convert away.
I suppose that it's a good thing for SCOX that there aren't any companies like that who would be willing to go to court with them, now, isn't it?
Re:A whole new ballgame? (Score:4, Informative)
Money. Lots and lots of money. A post on Groklaw that SCO's legal fees have topped $40 million [groklaw.net]. SCO does have a cap, so by the end of this year, they will be paying no more for the current cases.
Of course, if someone whose copyright SCO had violated were to sue, that would not be covered by the current legal agreement between SCO and its law firm.
Don't confuse OpenServer with UnixWare. (Score:5, Informative)
OpenServer is based on what was Xenix, and until the recently released OpenServer 6, it was considered to be an SVR3 system.
UnixWare was obtained in some form or another (under dispute at the moment) from Novell in the mid 1990s. It is an SVR4 system.
OpenServer 6 is being labelled as an SVR5 system now, and appears to be amongst the initial steps in merging/unifying the technologies found in UnixWare.
Indeed, at this point OpenServer is still a different product than UnixWare.
Current events, calendar. (Score:5, Informative)
SCOvIBM: In the wake of the recent opinion [groklaw.net] issued by Judge Kimball, fact discovery will continue until 27 Jan 2006, and the parties must disclose with specificity all "allegedly infringing materials" by 22 Dec 2005. Redacted and unsealed motions are being rapidly released, with SCO finally joining in. The parties seem to be still consulting [groklaw.net] with each other on the privilege log issue. Finally, a fully briefed, now partially redacted [groklaw.net] discovery motion [groklaw.net] awaits a ruling, though no hearing date is yet set.
SCOvNovell: On 29 Jul 2005 Novell answered SCO's amended complaint and filed an impressive array of counterclaims [groklaw.net] . Perhaps the most compelling request that Novell indicates they will present to the court seeks to require that income SCO received from Microsoft, Sun, and the other "Intellectual Property Licenses with Linux end users and UNIX vendors" be held in a "constructive trust" until Novell's contract claims are decided. Other counterclaims call for relief relating to SCO's alleged slander of Novell's title to UNIX System V copyrights and declarative, injunctive, and monetary relief relating to SCO's alleged breaches of the contracts effecting the sale of Novell's UNIX business to Santa Cruz. In particular, Novell seeks to have the court enforce Novell's actions to stop SCO's threats regarding Linux and AIX; to audit the terms of SCO's SCOSource licenses issued to Microsoft, Sun, and others; and to collect any money owed to Novell resulting from SCO's SCOSource activities. Unless SCO is granted an extension of time, they should reply to these counterclaims by 22 Aug 2005.
RedHatvSCO: This case remains stayed. However, Judge Robinson indicated [groklaw.net] that if "it would no longer be an inefficient use of judicial resources" or "there is evidence that SCO has misrepresented the issues," Red Hat can refile their motion for reconsideration to lift the stay. The parties are instructed to update the court every 90 days on related actions in which SCO is involved. The next update is due approximately 28 Sept 2005.
SCOvAutoZone: Judge Jones stayed [groklaw.net] this case "pending further order of the court" and the parties are instructed to update the court every 90 days on the other related actions in which SCO is involved. The next update is expected around 11 Aug 2005.
Pending/Recently decided motions:
Comment removed (Score:5, Informative)
Re:GPL'ing the source code to UnixWare. (Score:3, Informative)
Personally, I'd prefer to use a community-developed release of UnixWare if possible. You get the benefits of the development process and source code capabilities of Linux and the BSDs, but with the added advantage of backwards compatibility with previous UnixWare releases.
Re:Also (Score:5, Informative)
Re:Karma, .... what SCO got (Score:3, Informative)
Re:A whole new ballgame? (Score:5, Informative)
It appears that willfull infringement is a criminal offence.
I shamelessly cut and pasted the following from the Y!. Thanks are going to elcorton:
---
506. Criminal offenses
(a) Criminal Infringement. Any person who infringes a copyright willfully either
(1) for purposes of commercial advantage or private financial gain, or
(2) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000,
shall be punished as provided under section 2319 of title 18, United States Code.
---
http://straylight.law.cornell.edu/uscode/html/usco de17/usc_sec_17_00000506----000-.html [cornell.edu]
---
2319. Criminal infringement of a copyright
(a) Whoever violates section 506 (a) (relating to criminal offenses) of title 17 shall be punished as provided in subsections (b) and (c) of this section and such penalties shall be in addition to any other provisions of title 17 or any other law.
(b) Any person who commits an offense under section 506 (a)(1) of title 17
(1) shall be imprisoned not more than 5 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution, including by electronic means, during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, which have a total retail value of more than $2,500;
(2) shall be imprisoned not more than 10 years, or fined in the amount set forth in this title, or both, if the offense is a second or subsequent offense under paragraph (1); and
(3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, in any other case.
---
http://straylight.law.cornell.edu/uscode/html/usco de18/usc_sec_18_00002319----000-.html [cornell.edu]
Re:GPL'ing the source code to UnixWare. (Score:3, Informative)
There have been many cases of stolen GPL code where the offending party was contacted and they agreed to release the source code instead of taking it to court.
This happened when netfilter code (iptables) was stolen, and in many other cases. There is also an effort for making offending companies release source code. See http://gpl-violations.org/ [gpl-violations.org] for more info.
Re:Don't confuse OpenServer with UnixWare. (Score:4, Informative)
UnixWare7 introduced the SVR5 branch way back in Q1 1998. Prior to that release, it was pretty much vanilla ATT/USG SVR4.2 as purchased from Novell, as acquired by the absorption of the Unix Support Group.
OpenServer was SystemV R3.2 via OpenDesktop (SCO UNIX 3.2.4), via SCO Unix SystemV/386 R3, via a mix of XENIX System V/386 R2.3 and USG Unix SystemV R3. The resulting patchwork mess of cruft showed its scar tissue anytime you tried to do anything remotely useful with it. I still have flashbacks.
Re:I didn't read TFA but.... (Score:1, Informative)
Re:ALL YOUR CODE IS BELONG TO US! (Score:5, Informative)
The FSF recommends that copyrights to GPL software be assigned to the FSF. You do not give up your rights to do what you want with the code, because of the GPL, but because the FSF is the copyright holder, they can and will use their attorney-fu moves against people who violate the GPL.
Re:Bad moves now haunting SCO (Score:1, Informative)
Incorrect (Score:5, Informative)
1. They *may* have to pay damages, if somebody sues them and wins. This is legally possible.
2. Under *NO* possible scenario do they "have" to open-source their kernel. This is FUD straight from Bill Gates.
3. Even if they *do* open-source the kernel, they are *still* liable for damages, because they were violating the copyright before they open-sourced it. Otherwise there would be a huge loophole in the GPL (just wait until the code is uselessly old and release it and you are absolved of all copyright violations?)
It is true that companies often decide to open source some piece of code that they put GPL code into, in exchange for a promise to drop any pending lawsuits, and/or just for good public relations. However there is absolutely no legal requirement that they do this, and doing it does not put them in a legally better situation than before.
Re:The LKP is a MODULE, folks-- LOADABLE (Score:3, Informative)
Regardless of whether the LKP is a loadable module or not, it is still being linked with the UnixWare kernel at runtime, and as such, the UnixWare kernel must either be licensed in a way which is compatible with the GPL, or the distribution is illegal.
Your confusion stems from the fact that Linus & co granted the OPPOSITE exemption (in part) for the linux kernel; third party kernel modules may be under a GPL-incompatible license, provided that they declare so with a preprocessor directive in one of their source files (MODULE_LICENSE or something.) These non-GPL modules are restricted to linking to limited set of exported symbols, and cannot substantially alter the kernel's behavior; they're really only useful for hardware device drivers (which is about 99% of the market for binary device drivers in any event.)
They didn't cover their posteriors at all. Since they're distributing GPL'd code (which doesn't have an exception similar to the above) which links to non-GPL'd, binary only code, they've lost their rights to distribute the GPL'd code. Pretty simple, really.
Of course, this all assumes that the LKP actually DOES have linux kernel code in it. That's by no means a certainty at this point.
Re:The LKP is a MODULE, folks-- LOADABLE (Score:3, Informative)
However, when you 'load' an LKM or KLD type entity, you're not simply 'running a program'. You're linking the LKM/KLD with the kernel. Big distinction.
This is the fundamental difference between the GPL and the LGPL. The LGPL permits binary works linking against LGPL libraries, as long as there's a clean way for the recipient of the end work to upgrade to a newer (obviously, ABI compatible) version of the LGPL code. In the bad old days, this meant that programs were released in both linked and unlinked form, and the end recipient had the option of relinking the proprietary code against a new version of the LGPL library(ies) in question. These days, this is done with DSOs, which are sort of a user-space equivalent of LKM/KLDs.
The GPL does not permit this. If you LINK, in ANY WAY, GPLd code to ANY OTHER WORK, that other work then must fall under the auspices of the GPL or a compatible license.
Although, I get the feeling that you understand this, and are merely failing to grasp the fact that loading a kernel module is no different to linking it into the kernel at build time. The symbol table for the post-linked entity contains symbols from both of its progenitors.
Re:Incorrect (Score:5, Informative)
Actually, they have to open-source their kernel under one possible scenario:
If they link against linux code from their kernel, and they wish to continue distributing this kernel after this comes to light.
SCO kind of needs to keep distributing their kernel. They still sell the thing as their core business. Or they claim they do, anyway, whether that's actually what they do is another matter.
Now, they can of course just cut out all the GPLed code and keep distributing their kernel with the GPL-linked parts missing, but if the GPLed code exists it appears it's in the LKP, which is a fairly major feature that SCO has been advertising heavily as, well, almost SCO UNIX's only notable feature of late. It is quite likely many of SCO's customers are now depending on this feature. Dropping it now would be a painful decision even if their customers (both of them that remain, anyway) would let them do it at all.
Having to make a choice between GPLing their kernel and dropping the LKP, if it comes to that-- and depending on exactly what and where whatever Linux, that-- is not really much of a choice. But, of course, if that comes to pass it will be only because SCO purposefully decided to become bootleggers on a huge scale, so don't feel sympathy for them.
Re:Don't confuse OpenServer with UnixWare. (Score:3, Informative)
Damn, I had actually blocked those memories out until now.....
Errr...why do I have to re-link the kernel to change the IP address???...I guess, if it needs to
rebuild and link kernel
ummm....what just happened to my MPX package???
WTF, now nothing is working....~me reading manual ok, it says here rebooting will fix everyting.....errr, I thought that was a windows thinf, but what the hell....
ok, now the bastard won't boot
me booting miniroot off of floppies
ok, now I have this, what is wrong... looking at the kernel modification app...ok, so I need to revert to the old IP, uninstall MPX, update the IP, install MPX and we are set...
insert a few hours here (old, slow box, several reboots)
ok, now to install MPX installing... WTF, what do you mean Invalid License Key
I got it working, but I don't remember how.
Although, my boss called the next Monday, and asked why I had left her a voicemail asking for a black chicken, a white chicken, a silver knife, and a bucket (not only SCO Open Server, but Open Server 5.0.1 with a differential SCSI bus)
excuse me while I go curl up under a desk and cry now.....
Re:Uh, no. (Score:3, Informative)
You are repeatedly ignoring my point.
The LKP intercepts various calls, and passes them up to the 'host' kernel.
...
I see a big distinction between a discrete module execution (autonomous and distinct as a NIC driver, and equally as loadable and dischargeable) and grafting Linux source code into their kernel or gcc library source, or even header files, etc into a singularity.;
A kernel module is not 'discrete'. It runs in the same address space as the kernel itself. Think of it in the same way that you would think of a .so or a .dll file. LKP is definitely implemented as either a loadable kernel module or as part of the kernel itself, as it implements a trap for the int0x80 call gate (which linux and others use to jump from user to supervisor mode upon the commencement of a system call.)
Reference: http://uw714doc.sco.com/en/LX_uw/LKP_system_call_i nterface.html [sco.com]
What you have repeatedly ignored is the GPL's policy re: linking. From gnu.org:
This General Public License does not permit incorporating your program into proprietary programs. If your program is a subroutine library, you may consider it more useful to permit linking proprietary applications with the library. If this is what you want to do, use the GNU Lesser General Public License instead of this License.
Ergo, linking a proprietary piece of code to a piece of GPL'd code is not permitted (exceptions from the author(s) of the GPL'd code notwithstanding.)