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How SCO Helped Linux Go Enterprise 386

An anonymous reader submits: "SCO may now have filed for UNIX copyrights and made various allegations about code-copying, but the actual complaint against IBM still seems to be focused around allegations UNIX-based enterprise technologies (such as RCU, JFS and SMP) being improperly added to Linux. Yet, reviewing the Linux kernel archives reveals some interesting and surprising background on just who helped put these technologies into Linux. PJ's GROKLAW blog has uncovered that 'Caldera Employee Was Key Linux Kernel Contributor,' including what looks like a lot of work on the early stages of JFS. The same employee's name also crops up when we look at RCU. When IBM posts RCU improvements, did he complain? No, he requests further improvements even helpfully providing a link to inspire the IBMer!"

"Lastly, definitely worth reading, Alan Cox on Linux SMP. He says that got he ideas from a book (which presumably can't be somebody's trade secret), invented his own implementation, and did this using hardware provided by Caldera (SCO themselves do acknowledge providing hardware to the Linux SMP team)." The article points out of Christof Hellwig (the Caldera-employed kernel contributor) that "He's likely a great guy, and he's undoubtedly been a trusted Linux contributor, so this is nothing against him. It's about SCO and their position in the lawsuit, and it's about IBM's affirmative defenses."

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How SCO Helped Linux Go Enterprise

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  • This (Score:5, Interesting)

    by stephenry ( 648792 ) on Tuesday July 22, 2003 @08:17AM (#6498096)
    What thing I've learned from all this malarky surrounding SCO, and I'm by no means an expert, is that to find reason and logic behind it is pointless. Many people have tried to analyse and investigate SCO's claims, most have failed. Even watching the cnet interview, McBride comes over as a babbling idiot; no one is convinced.

    In the end however, it all boils down to this: SCO cannot really do anything. Okay, they paint a nice picture, blag a good story, but nothing -nothing- stands up to the evidence. Sure they could sue over copyright, patents (or what ever they've decided upon that day); but, linux is an international collaboration, and although it may have hit a hitch in the USA, it hasn't anywhere else. Linux will continue to move from strength to strength, SCO will die.

  • by deepchasm ( 522082 ) on Tuesday July 22, 2003 @08:20AM (#6498105)
    I don't understand how a small company can be this inconsistent.

    Also, with regard to their recent announcement of a "binary run-time license":
    How can _anyone_ distribute linux? If it contains code that requires a license from SCO, then it can't be licensed under the GPL (see clause 7 of the GPL).

    Therefore no-one can distribute it, not even SCO, since they don't own all the copyright. Is this what SCO intend? Just to get rid of ~12 years of work?
  • by pe1rxq ( 141710 ) on Tuesday July 22, 2003 @08:25AM (#6498136) Homepage Journal

    On alt.os.development, we've been discussing this somewhat humorously. It will eventually not be a problem. Linux will be able to simply rewrite its SMP handling (and other things that have allegedly been taken from SCO). In fact, at the OS level, working with 32 processors is no different from working with 2 (which Linux could already do before the alleged copyright infringement). However, handling 32 processors very well is a completely different story.

    And this is only in a worst case scenario.... Most likely linux won't have to be changed in any way....

    In any case, this is a big inconvenience for many people using Linux in their companies. I have to stop development on one of my projects because I don't want to pay SCO any money to use Linux. And why should I? Linux is supposed to be free. (All the more reason to use BSD, which I like more than Linux, but anyway...)

    Linux is free (ok, it depends on your definition of free...) but remember that about a decade ago you would had to stop development on BSD related projects due to some lawsuit......

    At the moment the only one who is being sued is IBM, everybody else is safe.
    Even if IBM did something wrong it doesn't mean anything for linux, IBM would simply pay some billions to SCO and live for linux would go on...
    And that is a very unlikely worst case.....


  • by perly-king-69 ( 580000 ) on Tuesday July 22, 2003 @08:25AM (#6498138)
    SCO is screaming to be bought out by IBM

    This is something which doesn't seem to be mentioned as often as it should.
    SCO are losing money big time. IBM have put significant $$$s into Linux and will be in trouble if SCO win.

    MS bet the firm on .NET
    Sun bet the firm on Java
    IBM bet the firm on Linux
    SCO bet the firm on Lawyers.
  • by jobsagoodun ( 669748 ) on Tuesday July 22, 2003 @08:26AM (#6498142)
    WinNT 4.0 end of support date is June 30 2003 according to microsoft.com. This SCO thing couldn't just be a load of FUD to make people migrate NT4.0 to Win2K instead of Linux could it?
  • IANAKD* but... (Score:4, Interesting)

    by Zontar The Mindless ( 9002 ) <plasticfish DOT info AT gmail DOT com> on Tuesday July 22, 2003 @08:27AM (#6498144) Homepage
    The whole SCO business just seems unbelievable. Maybe I've missed something somewhere but the basic story seems to be:

    1. SCO helps out Linux development in a few small ways -- some hardware here, a few lines of code there

    2. SCO turns around and says it owns the other 99% of Linux it had nothing to do with because of the 1% that it did

    3. SCO is now trying to extort licensing fees from end users because it "owns" Linux

    4. This is somewhat akin to Bob's Auto Parts Factory saying that, because the wholesaler from which my mechanic purchased a very small part he used in repairing my car part didn't pay them for the part, I now must pay Bob rent on my car -- and furthermore, they won't tell either my mechanic or me which part it was, because it's a "trade secret". Hell, they won't even tell my mechanic which wholesaler he supposedly bought the part from!

    Am I wrong? Did I miss something somewhere? Please feel free to correct me if I have.
    (*I Am Not A Kernel Developer)
  • Fighting back. (Score:5, Interesting)

    by pubjames ( 468013 ) on Tuesday July 22, 2003 @08:27AM (#6498145)
    I can't be the only one frustrated that there isn't an effective way I can fight back at SCO at the moment.

    Could there be grounds for a class action suit here? There are lots of developers that make their living in some way from linux. SCOs actions could well be a genuine threat to their livelihoods.

    SCO is basically using the legal system as a weapon. Perhaps we used be using it back on them? I propose a campaign whereby:

    1) Everyone that SCO thinks should pay for Linux should instead be encoraged to donate a sum to a legal fund.

    2) Developers who work with Linux should find a lawer who would be willing to represent them in a class action against SCO.

    Just an idea.
  • Re:Just remember... (Score:3, Interesting)

    by john82 ( 68332 ) on Tuesday July 22, 2003 @08:36AM (#6498181)
    The real problem is that the bench doesn't know jack about software, let alone an OS kernel. So it comes down to who can convince the judge. IBM has done nothing thus far to establish their position. Our opinions of SCO aside, our hopes are unfortunately dependent on IBM and their response seems to be relative silence.

    There are now so many claims and counter-claims that it would be helpful to have some sort of comparison of who claims to own what (name, source code, etc). My $.02.
  • by richie2000 ( 159732 ) <rickard.olsson@gmail.com> on Tuesday July 22, 2003 @08:43AM (#6498223) Homepage Journal
    * Read-Copy Update mechanism for mutual exclusion
    * (GPL boilerplate)
    * Copyright (c) International Business Machines Corp., 2001
    * Copyright (C) Andrea Arcangeli <andrea@suse.de> SuSE, 2001
    * Author: Dipankar Sarma <dipankar@in.ibm.com>,
    * Andrea Arcangeli <andrea@suse.de>
    * Based on the original work by Paul McKenney <paul.mckenney@us.ibm.com>
    * and inputs from Andrea Arcangeli, Rusty Russell, Andi Kleen etc.
    * Papers:
    * http://www.rdrop.com/users/paulmck/paper/rclockpdc sproof.pdf
    * http://lse.sourceforge.net/locking/rclock_OLS.2001 .05.01c.sc.pdf (OLS2001)
    * For detailed explanation of Read-Copy Update mechanism see -
    * http://lse.sourceforge.net/locking/rcupdate.html
    Let me run that one by SCO again: Based on the original work by Paul McKenney (paul.mckenney@us.ibm.com)
  • by BadElf ( 448282 ) on Tuesday July 22, 2003 @08:44AM (#6498233)
    Has anyone found an article on the SCO debacle where an interviewer has point-blank asked McBride (or whoever) why SCO has been (and continues) to offer their Linux distro with full source under the GPL on their own FTP site?

    You know and I know that it's there and available for the downloading, but have any of the "journalists" brought this (and its implications) to SCO's attention in an interview?

    I'd *love* to hear SCO's answer to that one!
  • by Surak ( 18578 ) * <surak AT mailblocks DOT com> on Tuesday July 22, 2003 @08:50AM (#6498255) Homepage Journal
    Of course, if Caldera/SCO had a programmer actually working on the code, as this article suggests, then Caldera/SCO is an equal partner in donating and modifying the SMP code for Linux.

    Any bets on how long it will take for SCO to come out and say that the programmer in question was workign without the authority or knowledge of his supervisors?

  • by dd ( 15470 ) * on Tuesday July 22, 2003 @08:53AM (#6498274) Homepage

    http://www.redhat.com/advice/speaks_rhletter2.html [redhat.com]

    From the article:

    "Below, we've provided answers to questions that may help clarify Red Hat's position. If you have additional questions that aren't answered below, please email us at legal@redhat.com."

  • For the sake of argument, let us assume that there is code in Linux to which SCO has a proprietary right, and that it was improperly contributed.

    SCO can very well enforce their copyright by granting a license. They cannot distribute a linux version that had their proprietary code since they do not have any license to the remainder of linux.

    On the other hand, since the GPL was violated by mixing open and proprietary code, no-one else has the right to distribute it either. The other contributors could file a lawsuit against RedHat, for instance, if they so desired.

    It is not SCO's responsibility to insure that non-SCO code is properly licensed.

    Therefore, if you need to buy a license from SCO you also need to contact every other constributor and buy a license from them in order to have a fully legal version of linux.Realisticly, however, it is unlikely that Linus et al are going to sue for code that they intended to share. So the SCO license is probably enough to cover you.

    One thing is becoming more and more clear. The code that is potentially infringing is isolated to post 2.2.x kernels. Since SCO continues to distirbute 2.2.x kernels they are, in fact, agreeing that that kernel is covered under GPL. Linux users can avaoid the whole issue by running 2.2.x, which should not be hardship for most.

  • by Platinum Dragon ( 34829 ) on Tuesday July 22, 2003 @08:59AM (#6498319) Journal
    Has anyone found an article on the SCO debacle where an interviewer has point-blank asked McBride (or whoever) why SCO has been (and continues) to offer their Linux distro with full source under the GPL on their own FTP site?

    Not quite, but close.

    On May 16, 2003, someone went through the available OpenLinux distributions based on the 2.4 kernel, and removed the binaries and source.

    However, the person(s) who did this forgot to remove the binary and source kernel packages contained in the /pub/updates/$whatever directories. In fact, it appears an update to OL 3.1.1, based on the 2.4.13 kernel, was posted on May 9. As well, the OpenLinux distributions are still on SCO's ftp server, just without kernels.

    Although McBride, et al have occasionally claimed that code outside of the kernel proper is infringing, SCO's claims outside of court are a moving target, and thus only worth noting for the purpose of countering the FUD. Watch what claims they actually make in court, and keep an eye on where they get smacked down. Look at what happened to SCO in Germany, and what is about to happen in Poland.
  • by Lonath ( 249354 ) on Tuesday July 22, 2003 @09:03AM (#6498340)
    I have to stop development on one of my projects because I don't want to pay SCO any money to use Linux.

    You can't pay SCO money to keep using linux.

    Look at it this way: Let's suppose that SCO loses. Then you don't owe SCO money.

    Let's suppose that SCO wins:

    SCO says that the 2.2 kernel is ok.

    In that case, if they win, all that they have done is show that 2.4 = 2.2 + SCO + other stuff.

    Combining terms,

    2.4 = GPL + SCO

    If SCO wins and puts the 2.4 kernel under GPL, you don't owe them any money. Everything goes on as normal.

    If SCO wins and they say 2.4 can't be under the GPL, then 2.4 is illegal. That's because 2.4 would be a derivative work of BOTH 2.2 and SCO, and any license on 2.4 must work with the 2.2 license and the SCO license. Since the only license that will work with the 2.2 code is the GPL, 2.4 is illegal if they choose not to put it under that license and can't exist. I also don't think they can temporarily remove 2.4 from the GPL and add it back in, because the moment they remove it, all derivatives up to the first "tainted point" become illegal...so SCO can't later on "donate" the code back to Linux because they don't own all of it.

    And they can't "gain control" of all of Linux by doing this either. It would be like MS putting some little utility in Windows illegally, then having the company that made the utility win a court case where they get control of all of Windows. Not gonna happen.

    I never realized how cool those clauses saying that you can't extend or alter the GPL were until this came up.

    So, to make it simpler, either everyone can use 2.4 for free, or nobody can use 2.4 at all.

    OTOH, if you intend to stop using Linux anyway, and you still don't want them to sue you, then you might pay them off. But realize that if you feel you have to pay them off, then you're admitting that you can't use 2.4 Linux.
  • Re:Just remember... (Score:5, Interesting)

    by vidarh ( 309115 ) <vidar@hokstad.com> on Tuesday July 22, 2003 @09:09AM (#6498382) Homepage Journal
    IBM has also done nothing to reveal their intended defence. Which is important. Keep in mind that the judge is required to disregard what is reported in the media and consider only the evidence.

    So SCO may get attention from media, but not from the judge, and at the same time they keep on blabbering, giving interview after interview, releasing statement after statement that all give IBMs lawyers plenty of information about SCOs strategy, and also give SCO plenty of opportunity to let slip unfortunate statements that might hurt their case if introduced into evidence (which IBM without doubt will attempt)

    IBM on the other hand have given SCO nothing.

    SCO is doing all this because they have to - they know they don't have a case, and their only hope is dragging this out and making it so painful that someone decides the best way is to write them a fat check. But at the same time they are increasing the risk that they will give IBM too much ammunition.

    Personally I don't think IBM will budge. Sure, it might be safer to just pay off SCO, but if they do they'll be targetted by every failing tech company out there.

  • Re:Just remember... (Score:2, Interesting)

    by Prior Restraint ( 179698 ) on Tuesday July 22, 2003 @09:10AM (#6498392)

    The real problem is that the bench doesn't know jack about software, let alone an OS kernel. So it comes down to who can convince the judge. IBM has done nothing thus far to establish their position. Our opinions of SCO aside, our hopes are unfortunately dependent on IBM and their response seems to be relative silence.

    You kind of answered your own complaint there. IBM isn't saying anything to the public because the public's opinion doesn't matter. The only opinion that matters is the judge's, and they're waiting for a chance to speak to him/her.

  • Re:Fighting back. (Score:3, Interesting)

    by Tim Macinta ( 1052 ) <twm@alum.mit.edu> on Tuesday July 22, 2003 @09:11AM (#6498395) Homepage
    I was thinking about this yesterday. What about a pledge drive run through a trusted organization like the FSF? People could pledge what they wanted and wouldn't be obligated to give the money unless the total pledges reached a certain amount. This would avoid the problem of collecting less than the amount of money needed to do this the right way. Also, having the FSF (or a similar organization) handle it would also cover the problem of what to do if money is left over at the end - the FSF could just put it towards further development, which is what they already do. I'd certainly donate some money if the goals were clearly stated and were a reasonable legal offensive against SCO.
  • Re:Just remember... (Score:3, Interesting)

    by jmccay ( 70985 ) on Tuesday July 22, 2003 @09:25AM (#6498475) Journal
    Even so, IBM now has an Ace in the hole. IANAL, but If an Caldera (and SCO owns Caldera) employee put a lot of the code in question in the kernel, then it's reasonable to argue that the code became public domain unless there is a copyright and license in the code when it was submitted. In fact, it may be argued that SCO by the fact that they own Caldera probably copied the linux kernel themselves. As I have said all along, SCO complaints smell really bad, and I doubt they have any case against IBM or anyone else.
  • Re:Just remember... (Score:5, Interesting)

    by rpjs ( 126615 ) on Tuesday July 22, 2003 @09:31AM (#6498512)
    IBM on the other hand have given SCO nothing.

    IBM employ some extremely good IP lawyers. In a previous incarnation I knew one well, and he was a very sharp individual. Combined his day job with leading the Liberals/Lib Dems from one member on the city council to two-thirds majority in less than two decades.
  • by arkanes ( 521690 ) <arkanes.gmail@com> on Tuesday July 22, 2003 @09:39AM (#6498564) Homepage
    Okay, I'm not a lawyer. But I don't know of ANY copyright infringment case where end users were held liable. I believe that SCOs claims and Linux end users are predicated on the old crap that you need a license just to run software, which is clearly false

    Normally, when you sue someone for copyright infringment, they pay you fines (this is compensation for the units already sold), and then either pay you royalties from then on or stop selling thier product (which is really thier product, since they won :P). People who already bought your product aren't in any sort of danger - Queen can't sue you for owning a Vanilla Ice CD, and JK Rowling can't sue you for owning (or even reading) one of the Harry Potter knockoffs. Similarly, USERS of Linux don't have crap to fear from SCO. Now, if SCO wins, it'll mean that the affected Linux kernels will be illegal to sell or distribute (They're only offering binary only licensing for thier code, which would conflict with the GPL), but not to use. You don't need a license to use software, no matter what everyone claims.

    I honestly think at this point, SCO is seeing the stock go up, and is just getting carried away in being ballsy. Normally only the really big fish, like governments and IBM can get away with just making blatantly unsupportable claims and daring anyone to take them on.

  • by oni ( 41625 ) on Tuesday July 22, 2003 @09:46AM (#6498606) Homepage
    including RCU does not make Linux a derivate of SVR4

    To put that in laymens terms: Putting a Type-R sticker on your Dodge Neon does not give Acura ownership of it.
  • Did SCO donate code? (Score:4, Interesting)

    by old-lady-whispering- ( 602967 ) on Tuesday July 22, 2003 @09:54AM (#6498673) Journal
    Time tables are very important here because if Caldera was not purchased by SCO when the donation happend then it coul be a real mess for the court to figure out. If Caldera did not have the same IP rights as SCO then they were contributing derrivitive works contolled under the original ATT licensing. If SCO was not aware of this when they bought Caldera or if SCO had purchased Caldera but were unaware that an employee of Caldera was violating SCO's IP then they are still free to seek remedy for the IP violations. This assumes Caldera tried to donate code to Linux which they did not own the IP or copyright to. This is all specutlation though (IANAL). The case does have some merrits in my opinion and I think will be a good test of the GPL if IBM decides to argue that point in court.
  • Re:Just remember... (Score:4, Interesting)

    by DickBreath ( 207180 ) on Tuesday July 22, 2003 @10:08AM (#6498776) Homepage
    SCO is run by a bunch of people who have a history of making money by suing people. I'm sure they are very ignorant of just what went on at Caldera and the commitment that Caldera had to contributing to Linux. I'm sure they want to be ignorant

    I have wondered, and now am finally wondering out loud whether David Boies really knew what he was getting himself into?

    He may have taken this because he likes high profile cases. But he may not have understood what kind of people he was dealing with. I wonder if he feels screwed? Lied to? I wonder if he feels that SCO terribly misrepresented their case to him?
  • by ajb44 ( 638669 ) on Tuesday July 22, 2003 @10:09AM (#6498796)
    Here is how IBM could stop SCO from spreading all this FUD: offer anti-SCO legal liability insurance to linunx users, for some amount much less than SCO is attempting to extort. Say, 20 cents a copy. This would send a powerful signal to the market that SCO is unlikely to prevail.

    This wouldn't cost IBM much, since they are footing the legal bill anyway. Any it would deprive SCO of the revenue stream which they would probably use to further the suit.

    Currently the trial date is set for 2005. We don't want the FUD to continue that long.
  • by hobsonchoice ( 680456 ) on Tuesday July 22, 2003 @10:14AM (#6498830)
    If he's not doing it for Caldera/SCO, why is he posting from a caldera.de email address and identifying himself as a Caldera employee?

    Why does his job title basically describe him as a Caldera employee working on Linux?

    Even if Caldera were to say he were doing it freelance:

    (1) why do they allow him to use company resource (like email) to do it?

    (2) doesn't the fact he is using caldera.de etc., make him a representative of the company?

    and (3) even if you think the answer to 2 is no, isn't it completely reasonable for others (like Linus, IBM, etc) to assume he is doing with authorization of his employer given his email address, job title, etc.
  • by jodo ( 209027 ) on Tuesday July 22, 2003 @10:20AM (#6498871)
    I talked with a former SCO employee (15 years - high rank) He told me they were well aware of the mixing of code. And that they (this is the previous regime) made the business decision to allow this. I assume they saw it as being in their interest at the time. This article indicates they even pushed it. Afterall, they expected to make money with Linux.
    IANAL but I believe this will be decided as a poison tree - poison fruit case. SCO poisoned itself. And deserves to die a horrible death.
  • by linux_author ( 691402 ) on Tuesday July 22, 2003 @10:20AM (#6498876)
    - it is unfortunate that Linux is involved in SCO's machinations, but the company's behavior only serves to highlight the problems with the U.S. patent system (there are also problems with the copyright system as well)... - i also look at SCO's behavior as a prime example of what to expect in the software industry as open source forces a paradigm shift towards commoditization of the operating system... the next resort will be embedded solutions (which, as we've seen, may also be manipulated)... - wait until the software monopoly (Microsoft) starts experiencing the market effects of free software... unless the company has been given direction to 'reinvent' itself within the next six years, Microsoft will start lashing out - and it will have a much bigger stick... i'd be willing to bet that Microsoft is closely monitoring SCO's efforts (and of course, feeding monies as a client in licensing 'transactions')...
  • Re:Just remember... (Score:4, Interesting)

    by WPIDalamar ( 122110 ) on Tuesday July 22, 2003 @10:27AM (#6498929) Homepage

    If this employee working for SCO worked on the kernel... he was improving GPL software. They then distributed that software... BAMN.. gpl... no questions askes. SCO may own the copyright, but they released it under the GPL.
  • by hobsonchoice ( 680456 ) on Tuesday July 22, 2003 @10:35AM (#6499018)
    Caldera purchased (most of) SCO not vice-versa. Caldera then renamed themselves The SCO Group.

    IANAL, but I think timelines are irrelevant.

    Assume for the sake of argument that all the "infringing" stuff came from SCO/Caldera. (this is not what SCO/Caldera claim, but just a what-if discussion to answer your post)

    1. If SCO/Caldera contributed some kind of Unix IP to Linux, *before* SCO/Caldera acquired these rights, in this case:
    - for the period until SCO/Caldera owned the IP, Caldera might be liable to the then IP holder (presumably Novell)
    - for the period since SCO/Caldera owned the IP, SCO/Caldera would be liable to the current IP holder, er, that's SCO/Caldera
    Unix-type stuff to Linux infringing some Unix IP
    - Linux distributors might be liable to the prior IP holder (presumably Novell)
    - Linux distributors would almost certainly not be liable to SCO/Caldera, as the infringement was a result of the actions of SCO/Caldera themselves

    2. If SCO/Caldera contributed some kind of Unix IP to Linux, *after* SCO/Caldera acquired these rights, in this case:
    - Linux distributors would almost certainly not be liable to SCO/Caldera, as the infringement was a result of the actions of SCO/Caldera themselves. In this case, if SCO/Caldera willingly contributed it, it would be hard to argue it was an infringement at all!
  • IBM (Score:2, Interesting)

    by Tantris ( 553205 ) on Tuesday July 22, 2003 @10:42AM (#6499102)

    It seems to me that SCO's actions must be making
    it more difficult for IBM to sell Linux to their
    enterprise customers. They are very quiet. When
    will IBM stand up and silence SCO? It would seem
    that they could do something similar to what
    the group did in Germany. They have copyrights from
    their contributions. They have the money and the
    legal department. I wish someone would stand up
    and shut them up. If not IBM, then FSF or
    Linus. SCO shouldn't be allowed to profit from
    the work of all the Linux developers.
  • Re:Background (Score:2, Interesting)

    by dhodell ( 689263 ) on Tuesday July 22, 2003 @10:52AM (#6499237) Homepage
    To clarify this, I'm "using" Linux in a sense that I'm developing it and distributing it for money. Only the SMP 2.4 version. I'm not an end-user in this circumstance. I am sure I can goof with the SMP stuff in 2.2 to handle more CPUs, but it will definitely not be as robust.
  • by Exidor ( 119947 ) on Tuesday July 22, 2003 @11:10AM (#6499429)
    Microsoft is the big winner here. Not because some little IT shop is going to upgrade to Win2K instead of NT4.0.

    The win for M$ will manifest itself in the form of some weenie company president reading the letter about how using Linux can get his company sued unless they pay up. He has his assistant tell the CIO that Linux is no longer allowed. Voila! More money for Bill.

    The bigger win will come over the longer term as the M$ flacks can use this as yet another 'example' of how Open Source Is Bad For You(tm).

    Of course this is IMHO...
  • by Surak ( 18578 ) * <surak AT mailblocks DOT com> on Tuesday July 22, 2003 @11:27AM (#6499641) Homepage Journal
    I hate to tell both you and the anonymous coward that replied to you, but there is PLENTY of case law where employers have claimed that employees were not acting on behalf of the company's interests and won.

    There is case law going the other way, too, though.

    It comes down to the evidence presented in the case. Was there an established, written policy about working on Linux? Are there memos between this programmer and his supervisor(s) regarding the work being done on the Linux kernel? What evidence is there that the programmer was acting in the interests of the company?

    Use of company resources isn't enough. I'm using company resources RIGHT NOW to post this message. Does this mean I'm acting on behalf of my employer? Nope.

  • by crivens ( 112213 ) on Tuesday July 22, 2003 @11:29AM (#6499670)
    I was just wondering if this SCO fiasco has anything to do with Linus deciding to work full time on the kernel. Maybe Linus is thinking that he could re-write the areas that SCO are concerned about and make this whole sordid affair go away?
  • Re:Just remember... (Score:2, Interesting)

    by Anonymous Coward on Tuesday July 22, 2003 @11:59AM (#6500048)
    IBM employ some extremely good IP lawyers.

    Here in the US, FSF's general counsel, Eben Moglen, used to be a lawyer for IBM...
  • by oasisbob ( 460665 ) on Tuesday July 22, 2003 @12:07PM (#6500157)
    SCO's Linux Cash Cow [washingtonpost.com]

    Is a little company from Utah turning into the spoiler of the open-source software movement?

    The SCO Group yesterday escalated its campaign to reap profits from corporate users of the Linux operating system, announcing that it wants companies to pay licensing fees. SCO is holding fast to its contention that Linux is "an unauthorized derivative of Unix," which it owns the code and copyright for. "SCO acknowledged it is seeking to bolster sagging sales by wringing revenue out of its rights to Unix, an older operating system from which Linux was derived," The Wall Street Journal reported.

    It doesn't sound like the many credible journalists are taking this threat seriously. The same post article quotes quite a few other news sources (including /.) that have less than supportive opinions of SCO.

  • Re:Just remember... (Score:4, Interesting)

    by HiThere ( 15173 ) * <charleshixsn@nOSpAm.earthlink.net> on Tuesday July 22, 2003 @12:09PM (#6500188)
    Actually, Caldera was a company that knowingly and intentionally released it's code under the GPL. It hired people to work on code with the express intention that the code would be released under the GPL. It distributed Caldera Linux under the name Open Linux. With much of it's own code included GPL (as well as some that wasn't).

    A Caldera employee working on the kernel on company time had every reason to believe that the company would sanction his working on GPL software.

    Changing the management doesn't allow you to make a retoractive change of the licenses that you sold things under or gave things away under (and Caldera did both).

    I may have despised Ransome Love, but these new guys are much worse.
  • Re:Provided that... (Score:3, Interesting)

    by MrResistor ( 120588 ) <peterahoff@gYEATSmail.com minus poet> on Tuesday July 22, 2003 @12:31PM (#6500495) Homepage

    1) A judge could rule the viral implications of the GPL to be invalid. Certainly copyright gives them exclusive rights over things and they can license it under terms, it's a grey area that their license can compel you to change the license of your software.

    Nothing compelled them to change the license on that software, they did it knowingly and willingly, and payed someone to do the integration work. Notice the title in his email signatures:

    "Christoph Hellwig
    Kernel Engineer Unix/Linux Integration
    Caldera Deutschland GmbH"

    2) The judge could rule that, though individuals at SCO contributed, that overall SCO is not liable for the actions of those individuals. Essentially this defense would be the "left hand didn't know what the right hand was doing" principle. That SCO never conciously chose to distribute their IP inside of Linux.

    Caldera made a pretty big deal over how they now owned the origional Unix source code and they were going to release a bunch of it as Free Software. I find it very difficult to believe that they would be issuing press releases with all the fanfare they could muster without the higher-ups noticing. If that's truely what happened, though, they should lose just based on pure gross negligence.

    Not only did they have an employee whose specific job it was to port Unix code to Linux, but they even advertised JFS and SMP as selling points for their Linux distro.

    If I were a judge presented with this evidence, I would be insulted that they would expect me to believe such a ludicrous claim.

  • Re:Just remember... (Score:3, Interesting)

    by Reziac ( 43301 ) on Tuesday July 22, 2003 @01:00PM (#6500937) Homepage Journal
    I'm wondering -- if anyone does go ahead and pay SCO's extor^H^H^H^H^H licensing fee, and SCO is found in court to have no case, can the people who paid up turn around and sue and/or prosecute SCO for damages and/or fraud/extortion?

  • by bl8n8r ( 649187 ) on Tuesday July 22, 2003 @01:14PM (#6501143)

    (taken from content here) [linuxtoday.com]

    Legally Speaking

    Eben Moglen, professor of law at Columbia University and general counsel to the Free Software Foundation (FSF), though says there is absolutely no reason for anyone to buy SCO's license. "Users don't need a license to use copyrighted programs anymore than they need to pay a copyright fee before reading Gone with the Wind. If you copy, distribute, or modify copyrighted material, then you can be in copyright violation."
    But, he adds, if a distributor, such as Debian, were to agree to SCO's license, they would then be in violation of section 7 of the Gnu General Public License (GPL). This section specifies that if legal "conditions are imposed... that contradict the conditions of this License" you cannot distribute GPL protected free software.


    "Even if SCO IP is in the Linux kernel, which has not been proved, an end-user could still not be held responsible for the copyright violation," Moglen argued.


    Curiously, though, SCO is not, at this time, going after Linux distributors--nor did they suggest that they would be adding copyright infringement to their IBM lawsuit. Moglen thinks that "SCO is simply trying to scare people about using free software by making irresponsible comments." He notes that, until recently, SCO itself was distributing the code they now claim violated their own copyrights.

    One reason why SCO may be hesitating about going after the Linux distributors, even though they would be the natural target for copyright violations since they've actively engaged in copying and distributing Linux source code may be because, SCO is still in the Linux distribution business.


    And, speaking for himself (Moglen) and not the FSF, "I have renewed my offer to assist free software developers who may feel the need for legal assistance" because of SCO's recent actions.
  • Re:Just remember... (Score:2, Interesting)

    by Anonymous Coward on Tuesday July 22, 2003 @01:24PM (#6501280)
    You can wonder if Boies really understood the technical case, but he's probably wondering if the /. community really understands the funhouse mirror we call the legal system.

    Just because they're wrong doesn't mean they can't win. Boies knows that better than anyone.
  • by Anonymous Coward on Tuesday July 22, 2003 @02:15PM (#6501832)
    I don't think IBM is in the least bit worried. In an internal employee broadcast yesterday, though he did not actually name SCO, Sam Palmisano made several dismissive references to the affair, including one about "silly lawsuits from guys that are going out of business".

    Based on their CEO's evident lack of concern, I assume IBM's lawyers have this whole thing covered and are just biding their time until the opportune moment, when SCO has placed its corporate neck comprehensively on the block.
  • by Anonymous Coward on Tuesday July 22, 2003 @08:04PM (#6506525)
    IBM (and whoever is losing any money because of the SCO FUD),

    Do you really believe IBM would be taking it's wait-and-see approach if they were losing money because of this? How many PHB are going to trust SCO over IBM? How many PHB have even heard of SCO?
  • by Anonymous Coward on Tuesday July 22, 2003 @08:06PM (#6506542)
    It doesn't matter if the programmer had authority or not.
    He appeared to have the authority
    He had a caldera E-mail
    he had a caldera phone number
    he had access to caldera owned source code
    Caldera distributed his work

    lookup the legal definition of "agent"
    Thats a legal slam dunk!

... though his invention worked superbly -- his theory was a crock of sewage from beginning to end. -- Vernor Vinge, "The Peace War"