Linked by Eugenia Loli on Wed 4th Jun 2003 23:10 UTC, submitted by StevenW
SCO, Caldera, Unixware A 1995 contract sheds light on the conflicting Unix ownership claims by Novell and SCO Group, with SCO receiving broad rights to the OS but Novell retaining copyrights and patents. Updated
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Could this be the nail SCO's coffin ?
by Anonymous on Wed 4th Jun 2003 23:31 UTC

Hmmmm.....kind of looks like it to me. ;)

RE: Could this be the nail SCO's coffin ?
by Greg on Wed 4th Jun 2003 23:35 UTC

I doubt it. This contract is completely nonsensical. How can you transfer "all rights and ownership" and not transfer the copyrights and trademarks? It's ridiculous. However, at least there's some legal foundation for Novell's case.

The contract makes perfect sense
by Mark Wilson on Wed 4th Jun 2003 23:45 UTC

The contract says that Novell transferred all rights and ownership _except_ copyrights and patents.

RE: Could this be the nail SCO's coffin ?
by Wrawrat on Wed 4th Jun 2003 23:47 UTC

I doubt. At worst, it would mean that Novell could sue IBM or any other distributor if they find UnixWare in Linux... ;)

Woops
by Wrawrat on Wed 4th Jun 2003 23:48 UTC

...if they find UnixWare code... ;)

Ha
by dwilson on Wed 4th Jun 2003 23:57 UTC

This case gets funnier with every news story. It seems like every day McBride or Sontag is either:
a) Threatening another corporation with a lawsuit.
b) Claiming that yet another person has coopted in this conspiracy to deny them their ip.

or

c) Expanding their claims on which parts and how much linux code is compromised.

Now, we find out they don't even have the copyright to Unix code and McBride makes the ridiculous claim that transferring the product without the copyright is like getting just the cover of the book. Hillarious. All the time people recieve source code without the copyright or patent (GPLed code, Shared Source code, a million other agreements). This is funnier every day.

another thing
by dwilson on Thu 5th Jun 2003 00:00 UTC

I am glad that Darl McBride and Chris Sontag are speaking to the press a lot and drawing attention to themselves. It will make it very clear when all is said and done that they were the ones piloting this sinking ship. Any future employers smart enough to do a little research will see clearly how these two clowns drove SCO into the ground. Hopefully these guys spend the rest of their working years in the mail room.

Re: The contract makes perfect sense
by haha on Thu 5th Jun 2003 00:00 UTC

Why debate on the contract when it clearly states that it excludes copyrights and patents?

hmm
by Torgeir on Thu 5th Jun 2003 00:15 UTC

This is allmost like Volkswagen, who bought the Bentley and the Rolls Royce car factory from Vickers, possibly thinking it also had the Rolls Royce name.....

weak lawyering
by april_fool on Thu 5th Jun 2003 00:26 UTC

"It doesn't make sense. How would you transfer the product but not have the copyright attached? That would be like transferring a book but only getting the cover," McBride said.

Caldera got the Unix licensing business and associated "atoms" (source code tapes, doc, etc), while Novell kept the IP. This does sound like pretty weak lawyering on Caldera's part. But we've seen IBM grant Microsoft porting rights to DOS as an afterthought, and Apple unwittingly hand over to Microsoft rights to clone the Mac look and feel. Maybe this is a case of "bad things happening to bad people".

 RE: Could this be the nail SCO's coffin ?
by Jeff on Thu 5th Jun 2003 00:27 UTC

It seem kinda simple to under stand to me. They have a "license" They bought a name and maybe a trademark. This to me is almost the same a going to the local electronics store and "buying" software. I am now legally allowed to use it, having paid for my copy, but that doesn't give me the copyright or IP from the product. If anything Novell got one over on SCO when they sold them some smoke and mirrors.

The contract was between the ¨old¨ SCO and Novell
by Kevin Rasmussen on Thu 5th Jun 2003 00:32 UTC

In 1995 The Santa Cruz Operation was just interested in the actual UNIX business i.e. the contracts and derived revenue for UNIX licenses.

This is why the contract included all rights EXCEPT copyright and patents which in any case The Santa Cruz Operation had no hopes of enforcing any time soon, as the BSDI lawsuit was still fresh in everybody´s memories.

This also explains why Caldera/SCO decided to sue IBM over breach of contract and misappropriation of Unixware IP, and excluded any references to patents and copyright.

This contract is interesting because it sheds some light on the present lawsuit.

The rest - e.g. McBride´s bombastic announcements - is just pure FUD.

re Kevin
by april_fool on Thu 5th Jun 2003 00:41 UTC

Right, I meant Santa Cruz Organization, not Caldera.

re Torgeir: that's a funny analogy, and once again an atoms vs. bits thing. Yep, VW got taken big time.

@Greg
by Anonymous on Thu 5th Jun 2003 01:01 UTC

it almost sounds like SCO was sold a "unix franchise"...they get to use it, they get to resell it, they can build other technologies on it, but the patents and copy rights remain with the franchiser...Novell.

kind of like mcdonalds. hell i don't know.

just thinking out loud

Legally. . .
by Sean on Thu 5th Jun 2003 01:05 UTC

From a legal standpoint, it is impossible to 'sell' a software product to another party without transfering the copyrights that apply to it. That is all that is being sold: the copyrights. Otherwise, it is simply licencing the software like Microsoft or the many GNU/Linux copyright holders do to us.

Soooo
by Alex (The Original) on Thu 5th Jun 2003 01:18 UTC

What does this mean now? Are you all saying that SCO doesn't have a case and Linux is free?

Not only will the Linux community be stronger after getting rid of SCO, it will smell better too.

What is going on with SCO is a strong testament to how it only takes one bad apple to ruin a company. Get an idiot CEO and your whole company can go down the drain. Having grown up with some of the SCO folks, I feel pity for any who are still left there.

The current CEO, Darl -- some sort of shorthand for 'derelict', I'm sure -- believes greed and the abuse of the legal system is the short cut to his personal riches I'm sure. Building a solid company probably never entered into his huge-piles-of-cash-and-crack-cocaine-insane-in-the-mebrane mind I'm sure.

We should make a countdown timer for how long SCO has to live.

comments
by sam on Thu 5th Jun 2003 01:21 UTC

>>>From a legal standpoint, it is impossible to 'sell' a software product to another party without transfering the copyrights that apply to it. That is all that is being sold: the copyrights. Otherwise, it is simply licencing the software like Microsoft or the many GNU/Linux copyright holders do to us.

No, from a legal standpoint --- what you "sell" can be defined as anything you want to sell.

sontag and mcbride's health
by monkey_magic on Thu 5th Jun 2003 01:31 UTC

if i was a concerned party, i would watch sontag and mcbride in case they feel the pressure a little too much like those unfortunate Enron execs who took the cheap route out.

...
by Anonymous on Thu 5th Jun 2003 01:32 UTC

SCO are criminals who can't turn a profit doing proper business, so they have to find some way through lawsuits to win money through legal disputes by suing everyone they know, basically everyone in the world. This baseless legal battle could take 75,000 years. Personally as a Linux user, I could care less what happens. The USA is a funny place and since I have a degree in Western hypocracy, I know how this will turn out already.

re Alex
by april_fool on Thu 5th Jun 2003 01:43 UTC

SCO is going after IBM over contract violations as a licensee of Unix (AIX), for allegedly transferring code and "trade secrets" from System V Unix to Linux. This involves proving more than that similar or identical code appears in both places - IBM engineers with access to both codebases had to do it (and not Caldera!).

SCO is also threatening corporations which have licensed Unix as users, which are also using or considering Linux. Here the argument is that code was allegedly transferred from System V Unix to Linux (although not necessarily by IBM), in violation of copyright. They are claiming they have the right to enforce copyright infringement even if they don't hold the copyrights, but even if they don't, they say they still can use IBM for breach of contract (n.b. "and even if that's not the case..." is the way lawyers argue). Presumably this is the point of the dog and pony show they are conducting now.

This is how they think they're getting around the clause in the Novell contract, and the fact that they apparently shipped the infringed code under the GPL as part of Caldera/SCO Linux.

Customers
by Corey on Thu 5th Jun 2003 01:44 UTC

In addition, SCO is screwing over their own customers. It's been announced that free access to SCO's Technical Articles be ended this month. Check out the feedback at: comp.unix.sco.misc
There are some very unhappy people.

No Argument here
by linux_baby on Thu 5th Jun 2003 01:52 UTC


There's no argument for sco here. The contract explicitly excludes patents and copyrights. What else could that possibly mean, other than that the patent and copyright does not belong to sco? That's exactly what it means, what else did sco think it meant when they signed?

Don't forget...
by Chuck Bermingham on Thu 5th Jun 2003 02:04 UTC

...Novell's press release said that SCO has been asking Novell to transfer the copyrights and patents to them for the past couple months? Why do you suppose that is? And why didn't SCO tell us that?

Alright:
by jbett on Thu 5th Jun 2003 02:12 UTC

This kind of deal happens all the time. If you think about it, SCO group basically bought the right to resell the product if you think about it, they did not retain rights to the name or the technology embedded in it. It's really a lot like licensing it, except on a more permanent level.

LookingGlass
by hylas on Thu 5th Jun 2003 02:15 UTC


"This contract is completely nonsensical. How can you transfer "all rights and ownership" and not transfer the copyrights and trademarks? It's ridiculous."

Yup, you'd almost need a law degree to ... ah er ...nevermind.

http://www.realworldgolive.com/six/freepdf.html

Although this book is copyrighted, please feel free to distribute intact via any method you choose online; please don't include it on a CD-ROM or other electronic media -- check with us in advance to obtain permission.

Kinda like ^this^ only with more and longer luches.

On the restaurant's door was a big X on the glass the window sign said OPEN.
They've since remodeled and reopened as:

The Open Group

http://www.opengroup.org/

(formerly X/Open)

A few more thoughts
by Mark Wilson on Thu 5th Jun 2003 02:25 UTC

1. I don't see any conceivable legal theory by which SCO could take action against Linux users, even if IBM violated the terms of its contract with SCO.

2. Given that Novell owns the copyrights and patents on "mainline" Unix up to December 6, 1995 (with the copyrights limited by the settlement of the BSD lawsuit), what exactly did Microsoft license from SCO?

3. SCO is a publicly traded company and subject to U.S. securities laws requirements concerning the accuracy and completeness of material statements about its business and financial prospects.

Why dont they....
by MarkH on Thu 5th Jun 2003 02:26 UTC

Why dont SCO or Novell or whoever "owns" UNIX just release the entire UNIX source code under an open source license (GPL or BSD). This would eliminate all these stupid lawsuits and haggling over who owns UNIX and what code is used in what OS.
And UNIX isnt a secret anymore. Many people (Linus the most noteable one) have created thier own clone of UNIX. Unix is not some mythical magical thing anymore. Everyone knows how it works so why are they going to so much trouble to keep secret this 30 year old code?
Get into the new age people and bring it all to open source.
This would be the only way SCO could save themselves now.

Novell OpenSource Unix?
by Bobthearch on Thu 5th Jun 2003 03:14 UTC

I've suggested before that Novell release the code as OpenSource. They can do that since they still hold the copyrights. That wouldn't prevent the IBM lawsuit because the alleged infraction would predate the code release. But it would stick it to SCO by making their ~alleged~ IP worthless.

Even if the contract can be read to say that SCO can enforce the copyright, they still have a *long* way to go to prove their case against IBM, and further still to show liability on the part of Linux distributers and users.

And why in the heck SCO would buy Unix without the copyrights? The contract seems to be much more than a license agreement, but much less than a full purchase. Poor SCO - screwed again.

-Bob

RE: Legally. . .
by Anonymous on Thu 5th Jun 2003 03:21 UTC

Which from the article appears to be the case. Sco was sold software and rights to use the software but Novell kept ownership of the ip. That is not something that is un-heard of and has happen before. Remember DOS ? Remember how many different DOS versions there are that are not put out by MS or IBM but can run MS-DOS software ? It appears SCO's claims are nothing but hot air and lies if this holds out to be true.

RE: Why dont they....
by Anonymous on Thu 5th Jun 2003 03:36 UTC

Why dont SCO or Novell or whoever "owns" UNIX just release the entire UNIX source code under an open source license (GPL or BSD).

Because there is value in it. Additionally, whomever actually owns the Unix source code curently may be a publicly traded company. If that company is a public company then just releasing UNIX to the world (public domain, BSD, GPL, whatever) could open them up to lawsuits by their shareholders. The board of a publicly traded company is legally bound to perform due diligence towards increasing shareholder equity. Releasing a potentenially revenue producing product to the public, instead of using it to increase shareholder equity is negligent.

Many people (Linus the most noteable one) have created thier own clone of UNIX.

Bzzzt. Wrong. Linus wrote a kernel similar to an operating system called, "Minix". Minix was itself a pale version of a real Unix. Making/understanding a kernel is nowhere near the same thing as understanding Unix. True System V Unix and Linux have entirely different kernel architectures. It's the GNU stuff that really makes Linux a Unix-like. There are many Unices and Unix-lie OSes, NeXT, as one example, that have entirely different kernel architectures.

Unix is not some mythical magical thing anymore. Everyone knows how it works so why are they going to so much trouble to keep secret this 30 year old code?

So you can sit down and write an OS that will pass the Unix compatibility suite and be certified as a real Unix? How about just writing something that is a Unix-like (ala Linux)?

It's not the 30 year old code or the OS methods/ideas that Unix has that is at question here. It's the newer code, the enterprise code, the clustering code, the n-way SMP code, etc... that is at the heart of the matter. Businesses that sell enterprise class Unix OSes (IBM's AIX, Sun's Solaris, Novell's UnixWare, etc...) have many differences, even though they are all Unices. It's those differences that give them competitive advantages in the marketplace. If one company steals ideas from another and uses them as their own, or puts them in Linux to dilute the advantage those differences gave, then a form of theft has occurred.

Even after 30 years Unix is not a dead, or stagnating language. Releasing the System V codebase into the wild just to shut SCO up isn't a viable business option (for all the reasons listed above).

The question Linux advocates should be asking themselves is, "What if SCO is right?" I'm not saying they are. But, too much energy is being put into just calling shenangigans against SCO. If SCO is right and/or they do win in (or out of) court, then the entire Linux movement is in big jeopardy. Companies using Linux could be sued for lots of money for patent infringements, Linux distro companies could be sued to the point of insolvency, and injunctions against distributing Linux in any form could be handed down.

GPL be damned, if there is proprietary code in Linux and it is being distributed against the code-owner's wishes then the GPL is invalid and the code isn't necessarily free anymore.


interview with Darl McBride
by Michael on Thu 5th Jun 2003 03:39 UTC

DL: When you leave SCO, what's it going to look like? What's your vision?

McBride: Part of the reason we went back to SCO is that I looked in BusinessWeek. They had an article on the top 100 brands, and my vision is that in a few years, we'll be one of those top 100 branded companies. One of our SCObiz re-sellers has sold 4,000 Web sites into 5,000 sell opportunities, so he has an 80% close rate. As we get our 16,000 VARs pushing this business out, we want that little SCO badge popping up.

So how did Intel become one of the top brands in the world? They got there through a lot of marketing and branding. So we have to move out of being a technology-only company. If we had an ounce of Microsoft's marketing muscle, that alone would propel us to be two or three times bigger than we are. Microsoft is the opposite. They have incredible marketing with very average, in most cases, technology. We have great technology and poor marketing.

DL: So we can look forward to a Back Office replacement in the future, and a return to the desktop?

McBride: We've talked a little about the desktop. We have internal folks coming to me and saying we can do the desktop piece real easy. It comes down to picking our battles carefully. We're going to focus on the Server right now. But we're not going to exclude ourselves from the desktop discussion as we go down the road.

DL: What can you tell us about Smallfoot? That's a really exciting project.

McBride: Smallfoot is one of the real gems that I found in my due diligence. This is the vision we had for embedded technology at Novell. The problem then was that it had to be shoehorned into IPX. It just didn't scale. It didn't work. When you're dealing with an IP transport, you're talking about a bigger story. That's where UNIX is a much better player. These stories start to resonate.

So we're taking a hard look at promoting the Smallfoot story in a big way. If you look at POS devices right now, you see a lot of DOS-based character terminals. They're just not very exciting in terms of what you can do with them.


http://www.desktoplinux.com/articles/AT3224314245.html

So it turns out with all that great technology, Darl decides to sue for his money. Pretty sad track record of productizing any of that tech and getting it to market solving important problems.

I guess that's what you get when you get your CEO from FranklinCovey.

re Novell
by april_fool on Thu 5th Jun 2003 03:50 UTC

If Novell released Unix as open source, I'm quite sure SCO would sue them immediately. After all, Novell sold them a licensing business in 1995. I don't think that will happen while SCO is still independent.

But SCO still has to show infringement, and that IBM is the responsible party. Beyond that, there's the issue of materiality. I have a hard time seeing how "hundreds of lines of code" within a GNU/Linux distribution could amount to a substantial transfer of trade secrets, unless maybe it's in some absolutely critical section of the 32-bit kernel such as the scheduler. Especially since SCO has never identified the infringing code to IBM and given them or anyone else a chance to rectify it. This could be one of those deals where after years of litigation the defendant is ordered to pay damages of US $1, tripled to US $3. Boies would take his 40%, so that leaves $1.80 for SCO and their shareholders.

....
by Anonymous on Thu 5th Jun 2003 03:53 UTC

Some history loosely gathered from Vahalia's book on UNIX Internals : The New Frontiers

- In the late 1960's Bell Telephone Laboratories (BTL) collaborated with General Electric and MIT on MULTICS.

- The project was canceled in 1969 and some of the members at BTL (Ken Thompson, Denis Richie, Doug Mellroy) wrote UNIX for the PDP-11. They also invented the C programming language and eventually wrote UNIX in C (UNIX version 4 in 1973).

- In December of 1973 UNIX was realeased to Universities as a result of antitrust litigations against BTL (subsidiary AT&T ...I think!) which left AT&T with the view that it could not market computing products. The UNIX system was given to many Univerisites ( but most notably the University of California at Berkeley) for research and educational purposes.

- UNIX became popular at this time and BTL began to work on it again. UNIX became commericially viable and portable in 1979 (version 7 UNIX), and things started to heat up.

- UNIX was PORTED to Intel 8086 architecture by Microsoft Corporation and the Santa Cruz Operation (SCO), resulting in XENIX, one of the earliest COMMERCIAL UNIX variants. Also around this time UNIX was ported to the first 32-bit architecture called VAX by Digital Equipment Corporation and BTL (UNIX/32V which eventually evolved into 3BSD).

- Okay there are two main branches of UNIX now - BSD and System V. I'll skip the BSD stuff however I'll just say that AT&T filed a lawsuit against BSDI and the Regents of the University of California, claiming copyright infringement, breach of contract, and misappropriation of trade secrets. On Febuary 1994, the case settled out of court with all parties dropping claims.

- System V stuff now. By this time BTL's legal case with the Department of Justice is resolved and AT&T is allowed into the computer business. System V was released in 1983, System V Release 2 in 1984, Release 3 in 1987. At this time AT&T is marketing UNIX System V aggressively and it have many features that are different than the BSD UNIX variant such as it's virtual memory implemenation called regions architecture, interprocess communication including shared memory, semaphores, and message queues, remote file sharing, shared libraries, and STREAMS framework for device drivers and network protocols. Their last release was System V version 4 (SVR4) but it was jointly developed with Sun Microsystems.

So in other words, BTL research group worked on UNIX but AT&T was prevented from dealing directly in the computer industry because they were a monopoly in the telephone industry, so the code was released to Universities. Once UNIX became popular and commercially viable AT&T tried to sue BSD and it settled out of court (there were many vendors porting and selling BSD UNIX commercially). By the 1980's AT&T was allowed to enter the computer industry and System V became their implementation which competed with BSD.

- In 1982 Bill Joy left Berkeley to cofound Sun Microsystems, which released a 4.2BSD based variant called SunOS (later an SVR4 based variant called Solaris). Microsoft and SCO jointly released XENIX. Later, SCO ported SVR3 onto the 386 and released it as SCO UNIX. The 1980s saw a number of commercial offerings, including AIX from IBM, HP-UX from Hewlett--Packard Corporation and ULTRIX from Digital.

The commercial variants introduced many new features, some of which were subsequently incorporated in newer releases of the baseline systems. SunOS introduced the Network File System (NFS), the vnode/vfs interface to support multiple file system types, and a new virtual memory architecture, AIX was among the first to provide a commercial journalizing file system for UNIX, ULTRIX was one of the first multiprocessor UNIX systems, etc...

- AT&T and Sun jointly developed System V Release 4 (SVR4), first released in 1989. SVR4 integrated features from SVR3, 4BSD, SunOS, and XENIX. It also added new functionality. The following year, AT&T formed a software company called UNIX Systems Laboritories (USL) to develop and sell UNIX. In 1991 Novell, Inc. maker of the PC-based network operating system called Netware, purchased part of USL, and formed a joint venture called Univel. Univel was chartered to develop a desktop version of SVR4, integrated with Netware. This system, known as UnixWare, was released in late 1992. Since than, there have been several newer releases of SVR4. The latest, SVR4.2/ES/MP, provides enhanced security and multiprocessor support. In 1993 AT&T sold the rest of its interest in USL to Novell. Later that year, Novell released the UNIX trademark and conformance certification to X/Open. In 1994, Sun Microsystems bought the right to use SVR4 code from Novell, freeing themselves of royalty and conformance requirements. Sun's SVR4-based release is called Solaris. Its later revision is Solaris 2.5. Solaris provides many advanced features including a fully preemptible, multithreaded kernel, and comprehensive support for multiprocessors.

{ I doubt it. This contract is completely nonsensical. How can you transfer "all rights and ownership" and not transfer the copyrights and trademarks? It's ridiculous. However, at least there's some legal foundation for Novell's case. }

It makes perfect sense. You have to specifically assign all Copyrights and Trademarks, look at the AT&T contract with Novell, they sold Novell everything. Furthermore the contract Novell signed with SCO specifically excludes copyrights and patents, All SCO bought was the licensing divison and all the UNIX contracts, I am no attorney but I think it is obsolete, if you sell all rights it means that the buyer can indeed enforce those copyrights whether it owns them or not. I think if SCO goes to court with Novell, Novell would lose. Its about time for IBM to go ahead and bite the bullet so to speak and just go ahead and do a buyout. Or these Linux companies need to all join forces and form a consortium or assign a foundation, Linux international to go ahead and perform a buyout if IBM refuses to. This needs to be stopped and stopped quickly.

I can see it now...
by OpenMind on Thu 5th Jun 2003 04:02 UTC

It becomes clear to me that both McBride & Sontag are trying to get rich by mocking the US Judicial System at the expense of IBM and the Linux community while giving Microsoft more resources to spread FUD further to the uninformed consumers.

...
by Anonymous on Thu 5th Jun 2003 04:03 UTC

The Trademark belongs to X/Open.

I'm surprised by how much involvement Sun Microsystems had in UNIX.

...
by Anonymous on Thu 5th Jun 2003 04:06 UTC

The UNIX Trademark belongs to X/Open and the copyright belongs to Novell.

RE: RE: Could this be the nail SCO's coffin ?
by Anonymous on Thu 5th Jun 2003 04:41 UTC

Do us all a favor and provide us with the link that has the code law which says that is it mandatory to transfer "All Copyrights and Trademarks" when liscening out software to another company. It's true that Novell bought Unix code and IP from AT&T ( who was trying to un-load it because of it's own legal problems ) but that is not the issue at hand. That contract is not what we are looking at right now and has no bearing at all. What we are looking at is the contract that Sco and Novell signed. A totally differrent contract that only gave them the rights to use and put out a Unix distro and which allowed Novell to retian all IP and Copyrights/Trademarks. IMHO Sco has no case whatsoever.



" A 1995 contract sheds light on the conflicting Unix ownership claims by Novell and SCO Group, with SCO receiving broad rights to the operating system but Novell retaining copyrights and patents."

Anyone else gather from that article
by Anonymous on Thu 5th Jun 2003 05:33 UTC

Novell pointing out that they're being very careful not to say who actually does own unix, but rather just that they didn't sell unix to sco?

I think this is a mess far beyond the scope we see it in... Why is it that Novell would state publicly that they are focusing soely on the contracts and agreements made in 95 - ""We've been careful not to make a statement as to who owns Unix," says a Novell spokesman. "We've limited our statements to the (1995) agreement signed with SCO.""

Now, granted there's a bunch of different flavours of UNIX... but something sounds fishy about that statement. It's almost as if Novell didn't sell those patents and copyrights back then simply because, for some reason I can't fathom, they couldn't.

I'm a big skeptic, especially of conspiracy and such... but the brow of curiousity must be raised. What really is going on here?

RE: Why dont they....
by Wesley Parish on Thu 5th Jun 2003 05:53 UTC

"If that company is a public company then just releasing UNIX to the world (public domain, BSD, GPL, whatever) could open them up to lawsuits by their shareholders. The board of a publicly traded company is legally bound to perform due diligence towards increasing shareholder equity. Releasing a potentenially revenue producing product to the public, instead of using it to increase shareholder equity is negligent."

That argument is specious. Look at Mozilla, open-sourced by Netscape, which took practically all its value from being publically-traded. Open sourcing's a valid escape route from an otherwise intolerable double-bind - you've got this valued IP, and it's losing market share, thus it's losing its value. You need to maintain its market share, and you need to develop it further, because, like a good farm, it'll lose value the longer it is left unmaintained.

Your opponent/s have a bigger development program and bigger teams of developers, more cash, etc, and they're cutting off your air supply - a pretty valid view of what is happening to SCO, as indeed to TEGO, a monopoly noted for marketing, market saturation, and little else.

You need to do an end run around that, you need to take a punt that puts the ball right between the uprights, or - to cut to the chase - you need to maintain enough market value that you can get bought out at a decent price.

Open Sourcing Mozilla fulfilled that sort of objective for Netscape - why wouldn't it do the same for Novell, assuming it actually owns the Unix source code? It would also nip in the bud any further idiotic attempts to make a silk purse out of a sow's ear, and could even allow the further development of System V. After all, Unix 32V has been declared to be public domain - according to the USL vs BSDI ruling:
http://cm.bell-labs.com/cm/cs/who/dmr/bsdi/930303.ruling.txt

...
by Anonymous on Thu 5th Jun 2003 06:01 UTC

What's really happening is that the SCO is trying to letch money out of sucessful businesses by claiming to own every platform in existance, even though as you can see from my previous post that UNIX has a long history of being developed by many companies and educational institutions, many tens of thousands of people. This lawsuit has already taken place between AT&T and the University of California at Berkeley years and years ago, the SCO has obviously read about that, they think that they can force money out of businesses but they are a parasite. I don't think that businesses or governments are going to put up with the SCO.


Sco.. FUD..
by Chuck Hunnefield on Thu 5th Jun 2003 06:41 UTC

"What if SCO is right? I'm not saying they are. But, too much energy is being put into just calling shenangigans against SCO. If SCO is right and/or they do win in (or out of) court, then the entire Linux movement is in big jeopardy." - Previous Poster

What if they are indeed? What can be done NOW to prepare for the unpreparable? It appears the whole basis of SCO's lawsuit will be this copied code (which they won't reveal yet).

SCO is belittled by people involved with Linux simply because the proof isn't there and the lack of information is scary. No one likes to be scared. No one likes to have their livelihood's threatened; so SCO becomes a target. Deservedly so. There is no reasonable explanation for their withholding of their evidence other than to scare off potential customers of Linux. Nothing they would reveal now would change the hundreds of thousands of Linux CD-ROMS in existance or the billions of 'changelogs' all over the 'net.

I too hope SCO takes it for this one; I only wish it was the execs who suffered more. You know THEY won't be the ones begging firms to take their resumes' seriously when the sh*t goes down. For some reason, execs who come from failed companies always seem to get the best jobs afterwards. As a strange coincidence, this seems to happen with baseball managers also. ;)

...
by Anonymous on Thu 5th Jun 2003 06:46 UTC

See the SCO didn't develop this technology (UNIX). They had their own distribution based on SVR3 called SCO-UNIX, but by far the primary developers of System V are AT&T and Sun Microsystems, as well as various other smaller sources.

So first BSD was sued and here we have SVR4 as the bases of the same claim that was laid on the BSD parties. The SCO who did not develop UNIX SVR4 but say they are protecting their intellectual property are going after IBM because IBM has money, and for no other reason. Otherwise they would sue the Free Software Foundation or else Linus Torvalds, but these guys don't have money, so the SCO is choosing to lay blame on IBM. Well, fist there is the battle related to whether or not SCO has any right to make any case for copyright and contract breech, than there is the battle related to the source code that nobody has even seen yet, and than there is the battle to prove that IBM is liable for damages. I feel quite strongly that the SCO will not succeed. I know that they shouldn't succeed because they are parasites, but beyond personal opionion and history, I guess that this is just something that American businesses just do. There is a lot of corruption, and who really knows, maybe some idiot judge will get his hands on the case and play favorites, but either way, this doesn't stop Linux developers from rewriting the offending code, if there really is any.

SCO, Novell, Linux ..
by Minkwe on Thu 5th Jun 2003 07:31 UTC

According to SCO's SEC filing, they are just doing the administrative work of SVx licensing for Novell:

http://ir.sco.com/EdgarDetail.cfm?CompanyID=CALD&CIK=1102542&FID=10...

--snip--
Restricted Cash and Royalty Payable to Novell, Inc.
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.

--end-snip--

@Anonymous: What if Sco is right?
How could they possibly be right? They don't own the copyrights and patents which is the basis for the accusation. It is like saying that the tree could still exist after it has been proven that it has no stem! -- Not on earth

@Showing of Code to Analysts!
Many of these analysts are marketing guys who don't even know what code is! FAIK they may never have seen actual code before. SCO must think we are chimps. Even chimps can figure this one out. As someone said earlier, Showing code is not sufficient. They'll have to prove that (1) the code is non-trivial and could not possibly have been developed independently (2) that the code was not borrowed from Linux or another source (3) That the code was not released by a party with legitimate copyright to it. Since they don't have that copyright, there is no possibility that they could answer those questions. And no amount of showing of code to ^^analysists?^^ can answer those questions.

All of a sudden their statements have replaced "intellectual property" with "Contract rights" -- Hah! They even admit that they don't own the copyrights and patents and that their lawsuit with IBM is not about that. Then how does linux fit into this picture?

What does Novell own?
by Mark Wilson on Thu 5th Jun 2003 08:10 UTC

Quote: It's almost as if Novell didn't sell those patents and copyrights back then simply because, for some reason I can't fathom, they couldn't.

Novell could have sold what they own back then if they wanted to.

What Novell is saying is that they are not taking a position on the precise relationship between the copyrights and patents they came to own and the question of who owns UNIX.

There are at least two things going on here:

1. AT&T's copyrights in UNIX are subject to the result of the BSD settlement (which means that anything that's in UNIX that was in BSD after the settlement was implemented can be freely distributed and redistributed under the BSD license).

I have not yet heard from a credible source exactly how much UNIX code got out under the BSD.

Also note that one of the reported reasons AT&T settled was because it turned out that a lot of BSD code had been copied into System V without compliance with the BSD license. It has been reported that AT&T paid all of Berkeley's legal costs in connection with the settlement, which gives an idea of AT&T's views on whether they had a chance of winning their lawsuit.

2. The following is less well documented, but what I infer based on various reports.

Another problem with AT&T's lawsuit against BSD was probably that it was not clear that AT&T had valid copyrights in all of the code other than the BSD code that was taken in.

Apparently, AT&T, probably unofficially, encouraged people at universities and in government to enhance the source code and AT&T would then put some of these modifications back into UNIX.

But, perhaps because this was somewhat unofficial, it is likely that AT&T did not obtain copyright assignments from those not employed by AT&T that contributed to the source code.

In the absence of such copyright assignments, all of those outsiders that contributed code would be co-authors (and co-owners of the copyright).

This Could Be Good For Linux
by Charles E Hardwidge on Thu 5th Jun 2003 09:20 UTC

Since this spat broke out, the majority of the Linux "community" has taken a negative view of SCO's legal action. Having read the referenced article and following arguments, I've come up with a more positive opinion.

The contract specifically states that all rights were transfered, though the asset purchase agreement says they weren't. It's certainly arguable that if the rights were not transfered the right to enforce them was.

If SCO wins this could effectively put a freeze on distribution of Linux until alternatives or some form of settlement could be found. The positive aspect of this is that a single authority could mandate standards and bring a focus to Linux development that is sorely missing, retaining all the benefits of open source.

Microsoft would cease to exist in five years... ;)

Re: This Could Be Good For Linux
by minkwe on Thu 5th Jun 2003 10:58 UTC

Have you also checked out all the facts laid out in
http://www.opensource.org/sco-vs-ibm.html ?

There is so much confusion about this case it just stinks. There is the SCO vs Novell issue and the SCO vs IBM issue and the SCO vs Linux issue.

SCO vs Linux does not have any merit in court unless they win both SCO vs Novell and SCO vs IBM. The only reason SCO is dragging in Linux now is for FUD slinging. They want you to believe thay their hard work has been misappropriated but as it turns out all the code was developed by someone else. They just bought it! How then would they know if the code was not put in Linux by that person of if that person did not get it from Linux in the first place?

Analogy:
It is like buying a painting with the believe that it was the one true valuable painting. Then realizing that 1000 other people had the same painting. You then decide to sue the others for copyright infringement, and prove your case by showing the paintings to wine testers (analysts)!

I'm tired of all this "What if SCO wins?" statements.

Linux fud and SCO wizardry
by Walt on Thu 5th Jun 2003 17:12 UTC

Interesting that people seem confused with the fact that
Novell sold the code but retained the IP and copyrights.
While I am not a lawyer, I will try to shed some lights on it.

What novell sold to SCO was the source code and the licensing business. The implications of this is that Novell cannot release the source code as open source...
That would be a breach of contract with SCO.

By specifically excluding the unix IP and copyrights from the sale, this means that Novell retains the use of the technology in Unix. This means that Novell can get back into the unix business , but they must recreate the source code independently again. This would be against the spirit of their agreement with SCO, but legally I don't see how SCO can stop them. Nothing is wrong with selling code and retaining IP. These are quite different animals. As ana example, many companies after creating a product realizes that it infringes on someone's patent have no right but to license it for use in the products. This doesn't mean that the owner of the IP owns the product or can license it simply because their IP is in it.


Second, Novell can still license the theoretical foundation of unix; in order words, the methods and processes, although not the actual code unless it's a clean implimentation of what they sold to SCO.
Clearly what this means is that any copyright infringment that SCO can possibly sue for is for any new code that they have added to unix since buying it or otherwise sue only through a breach of contract as they did.
'As is up, so is down !'
Given that SCO probably hasn't done much to improve unix lately and the fact that most of the advanced features in AIX are IBM's doing, it stands to reason were IBM to transfer any advance code into linux, IBM may infact be the owner of the code. The reasoning behind this is that no commercial licensing contract comes close to assigning or granting a license to the licensor for new additions made
to the code.

This means that the only case that SCO could have is if the said code was written by Caldera/SCO which is unlikely because if SCO's unix had these advance features, they would not be in such a straght jacket; or a simple breach of contract because IBM decided to abandon further work on unix in which case this has nothing to do with linux.
Since from the evidence SCO doesn't even own the unix name, nor the IP, most of their case, especially them sending letters to linux users is simply fud.

I hope this helps
Walt

What does Taratella have to say
by Anonymous on Thu 5th Jun 2003 19:25 UTC

It might be interesting to solicit the opinion of the original SCO, now Tarantella, regarding the ownership of Unix copyright and patents. If Tarantella agrees with Novell that the contract between the two excluded patents and copyrights, then the current SCO will not be able to dispute it as the contract was between Novell and Tarantella, and if they agree on the scope of the contract, then IMHO, no successor in interest can challenge it. So let us have some journalists talking to Tarantella.

...
by Anonymous on Thu 5th Jun 2003 19:42 UTC

I don't think it's going to be easy to tied a few hundred lines of code, specifically to IBM, but the reason why the SCO chose to sue IBM is because IBM has a lot of money. The parasite (SCO) gravitated to the biggest host if could find. Those unidentified couple of hundred lines of code is surely worth one billion dollars, right.

...
by Anonymous on Thu 5th Jun 2003 19:49 UTC

If the SCO wanted to make a valid case than it would identify the code and prove it's case to the Linux maintainers. It could ask the maintainers to replace the offending code. Now if the maintainers of Linux disagreed, than there might be some grounds for conflict, but this is not what has happened. The SCO doesn't care about the source code being replaced, they simply want to find a way to steal a billion dollars. It is not in their interest that this supposed code be removed, infact it is in their interest that even more SVR4 code be put into Linux (if there is any to begin with). This parasite (SCO) is a criminal organization.

....
by Anonymous on Thu 5th Jun 2003 19:57 UTC

I wouldn't be surprised if the SCO has been planning this for a long time, and added "the code in question" to Linux themselves.

RE: Why dont they....
by Archiesteel on Thu 5th Jun 2003 21:49 UTC

Companies using Linux could be sued for lots of money for patent infringements

SCO does not own the UNIX patents.

Re: Archiesteel
by Alex (The Original) on Thu 5th Jun 2003 22:24 UTC

SCO does not own the UNIX patents.

That's right!! So all their claims about the Unix IP could vaporize because they don't own the patents (well according to Novell) right??



Re: What does Taratella have to say
by RJDohnert on Fri 6th Jun 2003 04:19 UTC

Tarantella says they do not own any IP in UNIX all of their IP was sold to SCO.

Re: Re: What does Taratella have to say
by Anonymous on Fri 6th Jun 2003 06:52 UTC

"Tarantella says they do not own any IP in UNIX all of their IP was sold to SCO."

That is the current situation. My question was, when Tarantella (the original SCO) bought Unixware from Novell, did their contract exclude patents and copyrights or not? Since the language of the contract between Tarantella and Novella is a bit confusing, a clarification from the former regarding the IP would help.

RE: SCO, Novell, Linux ..
by ryan on Fri 6th Jun 2003 12:33 UTC

SCO needs to show that proof or shut up. Notice that in germany, where they were sued for failing to substantiate their claims, they actually shut up and even took down their website.

Re: Re: What does Taratella have to say
by RJDohnert on Fri 6th Jun 2003 15:58 UTC

{ That is the current situation. My question was, when Tarantella (the original SCO) bought Unixware from Novell, did their contract exclude patents and copyrights or not? Since the language of the contract between Tarantella and Novella is a bit confusing, a clarification from the former regarding the IP would help. }

Tarantella was the original SCO, that is the contract in question, Apparantly they thought they were getting everything but it appears that they were mistaken. But since Novell sold all rights to SCO, then SCO does in fact have enforcement powers, wether Novell likes it or not.