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."
Wait . . wait . . what? (Score:4, Interesting)
Or does it mean that SCO UnixWare has code that was once in the linux kernel?
It's interesting either way, of course, but c'mon guys. Precise wording is your friend.
confidential (Score:3, Interesting)
Someone care to exlpain?
A whole new ballgame? (Score:5, Interesting)
I wonder what Boies and company get out of this. I remember reading about Boies during the MS trials and he's a fascinating guy. The problem with finding a lawyer fascinating is that eventually they have to defend OJ or Darl McBride or some other idiot. But it seems to me that Boies went into this one where he had a choice to stay outside. Very strange.
Hell, I don't even know if Boies is still involved in any of this. I figure even if he is, they might need a different kind of lawyer for defense instead of attack. Tee-hee.
Created Uncertainty (Score:5, Interesting)
I'd like to know how would anyone know (as in establish as fact) their compiled code contained GPL'd parts? It was easy to spot when those jokers claimed PearPC was something they made. But, how would anyone know in this case?
It might have been a trial balloon for Microsoft to gauge their litigation options too.
Re:Karma, .... what SCO got (Score:3, Interesting)
It looks to me that what SCO got is that they got away with it. They stole GPL code and are certainly not being punished for it.
SCO's copyright code FUD campaign (Score:1, Interesting)
They have not been able to produce a single piece of conclusive evidence that the Linux kernel contained their code. They didn't produce any when they were demanding licenses for Linux, and now they don't produce any in their case against IBM. They based their attack on Linux, not on any fact, but on FUD.
Now, they may have put Linux code in their kernel. They engaged in a FUD campaign against FOSS, claiming that it did/might contain copyrighted, proprietary code. They demanded that Linux customers pay them, since Linux 'did' contain 'their' UNIX code. while SCO had copyrighted, GPL'ed code in UnixWare.
Finally, we see that SCO was guilty all along. Instead of playing fair and opening the source of UnixWare, they started a full-scale holy war against Linux.
I wonder how much FUD is going to be stirred up when the GPL license comes back to haunt them?
The LKP is a MODULE, folks-- LOADABLE (Score:3, Interesting)
So is it poisoned? No.
Is it a copyright violation? No
Is it a GNU GPL violation? No.
Sorry to burst your bubbles. I dislike SCO along with the rest, but in this case, they covered their posteriors. READ THE LICENSES THAT CAME WITH THE PRODUCT.
Re:Oooooh the juicy irony..... (Score:5, Interesting)
It is a bit more complex than that.
In the ordinary course of things you can probably convince a court that inadvertent infringement on a small scale should not result in a major damages award. This is after all what most people on the pro-Linux side have been maintaining all along. The minute that SCO actually state with specificity the code they claim is stolen in Linux the code will be gone in a New York Miniute.
But the whole SCO case amply demonstrates that Microsoft has a point. The GPL is certainly good for creating a SCO like FUD lawsuit that can be used to obtain discovery powers and burn huge quantities of legal fees. The best corporate lawyers I have worked with are the ones who avoid the lawsuits in the first place. From that point of view the GPL is a real tar baby and RMS has told me personally that this was essentially his intention all along.
I don't think that things are quite as simple for SCO in this particular circumstance. The problem is that they are going to the court arguing that IBM has damaged SCO by allegedly stealling copyright material from them. If IBM can establish that SCO has been stealling copyright material from others then there are some major consequences.
The first of these is that SCO has presumably had to execute an affidavit in which they claim that they have good title to the code in question. If IBM can prove that title is questionable they score important points. If IBM can prove that SCO acted in bad faith with respect to the title then there is a sizable chance that the whole suit gets thrown out.
At this point of course we are still waiting for SCO to actually state with specificity what parts of the code infringes. And I strongly suspect that SCO will never tell.
Re:What is the SCO? (Score:3, Interesting)
SCO stands for the Santa Cruz Operation Group, and was originally a company named Caldera. The original SCO is now known as Tarantella. The original SCO was a company founded in the 1970s which made a flavour of Unix for x86 processors.
In 2000, Caldera bought the rights to that Unix from the original SCO/Tarantella (Caldera was also making a form of Linux called Caldera Linux, and had been making it since 1998). In 2002 Caldera bought the rights to use the name SCO from Tarantella, and renamed itself the SCO Group and the version of Linux SCO Linux.
By about 2003, the SCO Group was in financial difficulties, and Darl McBride was brought in. SCO Linux was suspended, and McBride had the SCO Group begin the lawsuits and legal threats, including threatening the people who had bought Caldera/SCO Linux from them with a lawsuit if they didn't pay the legal fee (and I don't care how tired I am and how much of an aside this is, it's still a REALLY STUPID thing to do).
And you know the rest.
I hope this helped.
Re:Wait, back up (Score:3, Interesting)
Well, I would say that's a very different situation-- and I've seen analyses of this very issue which claim that under such a case no, you haven't licensed anything, due to something I do not understand called "the doctrine of mutual mistake".
However, that's if the presence of the GPL code was "unbeknowst to you". What I am getting at is that the email quoted in the toplevel post could potentially constitute proof that the GPL-distribution-of-hypthetically-derived code actions happened knowingly. That would change the situation significantly. This was the entire point I was trying to make.
Re:Not to be cynical... (Score:2, Interesting)
Yes, but we all know, BSD is dying. Better to use Linux code.
Even if this is true, the code in question is available under a far less restrictive license then the Linux code itself. Since SCO still has one or two paid programmers on staff (for the time being at least), they could still have Linux compatibility without violating the copyrights of the Linux code contributers; it would just require more work and effort from their programmers.
SCO took the easy option, and, as expected, it's going to bite them on the balls. No surprise there, and no pity either.
Re:Oooooh the juicy irony..... (Score:2, Interesting)
Re:Oooooh the juicy irony..... (Score:2, Interesting)
I wonder what the chances are that someone gets thrown into jail? I'd imagine that a judge would take a fairly dim view of someone lying about material facts in a sworn affidavit and so on.
Re:Incorrect (Score:3, Interesting)
This would isolate the offending code and the gpl from SCO's products. It would also allow a consumer to continue to use the features if it was decided neccesary. SCO's contract would say users cannot distribute the product or modify it outside it's original intent so the need to distibute the source would be negated. If they opened the source to the patch, of course there is a provision allowing the source to be distibuted as well as the freedom to distribute the patch itself. A well crafted license from SCO could say that you waive any implied or other rights to do so by using thier product and then the patch and or source code would likley be only distributed when someone decided to stop using SCO's products wich isn't likley to happen. Something else that could be used to discourage the distibution of the patch to outside people might be an outragiously high price tag for it and then waive it if the party quietly agrees to keep it in house. This would be agains tthe gpl because they still have the right to distribute it but choose not to in order to say money.
This is dancing around a bullet but oculd efectivlly stop the scenario you described form playing out. It would probably be considered underhanded and low by most. Unfortunatly i can think of several other ways they could dance around the issue too. A complete rewrite of the features might be one of them.
The dificulty of installing such a patch, recompiling the kernel and all that wouldn't be an issue with the types of end users who will use SCO's products. More often then not the patch would be performed by a skilled in house IT staff or a consulting company specializing in it.
Re:Short SCO Stock!!! (Score:3, Interesting)
You can't short a stock after the price drops below $5.00.
I'm not sure if it's an SEC rule, or an exchange rule.
Re:ALL YOUR CODE IS BELONG TO US! (Score:4, Interesting)
Not necessarily a "good thing" (Score:2, Interesting)
Of course that logic is flawed, but I can see many corporations getting paranoid and developing new guidelines indicating that bringing OSS code on site is grounds for dismissal.
Re:ALL YOUR CODE IS BELONG TO US! (Score:3, Interesting)
Eben's attitude yesterday at the OSDL talk at LinuxWorld was that SCO is "dead." And from here on out, he wants to make sure something like them doesn't happen again - so he pointedly targeted Microsoft and its patent campaign and announced a patent acquisition campaign for OSS.
His talk was very good, BTW.