Linked by Eugenia Loli on Tue 18th Nov 2003 20:33 UTC, submitted by Alex Alvarez
SCO, Caldera, Unixware "Since they cannot show infringement of SCO Unix code, SCO now plans to challenge the 9-year-old settlement between AT&T and BSD. If it can successfully do that, then its claims that Linux contains tainted code can be substantiated. If it can't, SCO is dead meat." Says NewsForge. *Updated*
Order by: Score:
Hmm?
by Bram on Tue 18th Nov 2003 20:36 UTC

Are you telling me that according to this particular flawed legal system one can just re-open a case that was won (by BSD that is) 9 years ago? Tough luck.
They're acting like a chicken that's just been decapitated .. they're dead but just don't know it yet. Ah well, it's their funeral.

Interesting ..
by linux_baby on Tue 18th Nov 2003 20:38 UTC

Very interesting indeed. As far as I can, that would be another stupid move, but who really knows what SCO is up to, other than the pump-and-dumb stock scheme?

I certainly look forward to hearing the opinion of the BSD fans, most of whom have so far been content to claim the moral high ground on this matter!!!!!

v First Linux... now Apple
by Anonymous on Tue 18th Nov 2003 20:38 UTC
they are getting desperate
by jared on Tue 18th Nov 2003 20:41 UTC

I think that this just goes to show how desparate they are getting.

Grand Finale
by Sir_Gawain on Tue 18th Nov 2003 20:42 UTC

All SCO wants now is to go out with a bang. Once they are gone, people will remember them for a long time afterwards as the company that failed to destroy linux.

Very interesting
by Nate Downes on Tue 18th Nov 2003 20:44 UTC

If they go after BSD, their #1 target would be Apple.

How many OS's use BSD code?

So much for safety in using *BSD based systems...
by Shawn on Tue 18th Nov 2003 20:44 UTC

So much for safety in using *BSD based systems. My poor FreeBSD installation is wilting already...

Re: linux_baby
by Bascule on Tue 18th Nov 2003 20:44 UTC

I certainly look forward to hearing the opinion of the BSD fans, most of whom have so far been content to claim the moral high ground on this matter!!!!!

I think its more an issue of BSD having already been through multiple cycles of purging all AT&T IP from their codebase, starting with the releases of BSD Lite, Net/2, etc. and concluded following the USL lawsuit. I really can't imagine what SCO expects to find, considering there are no corporations with Unix licenses integrating portions of their code in to the BSDs, as the BSD license would not be conducive to protecting their interests...

While it may not have a leg to stand on the Linux side of things, there at least exists a theoretical potential for IBM, SGI, et al to have accidently integrated SCO-owned code into the Linux kernel, whereas on the BSD side this really isn't a possibility...

Re: Grand Finale
by Knockturn Alley on Tue 18th Nov 2003 20:44 UTC

Yes, can't believe the audacity of this company. More huevos than beans, me thinks. But what it really means is that this whole thing is going to be deliberated over by the courts long after we are all dead, it would seem. It's going to take a hell of a long time to sort all this out.

Where?
by Bill Sykes on Tue 18th Nov 2003 20:45 UTC

"SCO now plans to challenge the 9-year-old settlement between AT&T and BSD."

I see this assertion in the article, but I see no quotes or proof that SCO actually intends on doing this. There is something mentioned about a question. But it is not elaborated on.Where's the beef?

Hey Apple...
by Crawling Mushroom Syndicate on Tue 18th Nov 2003 20:45 UTC

...better get your legal guns loaded, Darl's coming for OS X now.

This is so ridiculous words can't even describe it. The "I own every operating system on the planet" comic soap opera gets crazier every week.



No Deep Pockets
by Steve W on Tue 18th Nov 2003 20:47 UTC

It would be a waste of time for SCO to go after BSD. Who would you go after? The Free/Net/OpenBSD projects have next to no cash. There's no deep pockets anywhere. This article skips over the fact that SCO doesn't want to simply win a judgement; they want money and the BSD's have none. They'd spend more in court costs than they could possibly gain.

I'll still use my BSD
by Carolyn on Tue 18th Nov 2003 20:48 UTC

As I write this, I am using my BSD. Proud of it. I also use Linux. Proud of it. Will still use both. SCO is grasping at straws and I am getting tired of the gloom and doom. Is this just an idea that the writer of the article has? I haven't seen one legitimate press release or quote from SCO saying that they are going to pursue this.

Actually
by Bill Sykes on Tue 18th Nov 2003 20:48 UTC

It hasn't been mention here on OSNEWS but SCO is suing Novell for buying SuSE. Novell had a non compete agreemnet with SCO from the selling of Unix in 95. Selling Linux is definetly competing with SCO Unix.

Re: Very interesting
by bsdrocks on Tue 18th Nov 2003 20:49 UTC

How many OS's use BSD code?

Plenty, even include Microsoft. ;-)

After RMS....
by therandthem on Tue 18th Nov 2003 20:50 UTC

After RMS gets done with them, I doubt they'll want to take on Theo ;)

Re: OSs using BSD code
by MattPie on Tue 18th Nov 2003 20:53 UTC

Lots, including Windows NT/2000/XP (TCP/IP stack). Maybe that's what all those payments were for. ;)

I had been thinking about this for awhile. It's the only way SCO can to win. I don't think there's a "Double Jeopardy" protection for civil cases, but I'd check on groklaw.

@Bill Sykes
by Great Cthulhu aka Archie Steel on Tue 18th Nov 2003 21:03 UTC

Actually, SCO is threatening to sue Novell. They haven't sued them already.

Also, the non-compete agreement is for Unix on Intel. Linux is not Unix, it is Unix-like. Big difference. Therefore, I doubt that Novell selling Linux goes against the non-compete agreement they had with SCO.

RE: Actually...
by David Bruce on Tue 18th Nov 2003 21:10 UTC

"It hasn't been mention here on OSNEWS but SCO is suing Novell for buying SuSE. Novell had a non compete agreemnet with SCO from the selling of Unix in 95. Selling Linux is definetly competing with SCO Unix."

The non-compete clause is a lot more narrowly written than that. One of the other sites (I think either Groklaw or Newsforge, not sure which) had a direct quote of the non-compete clause, which basically says that Novell cannot use the Unix source code as the _primary_ basis to develop products that compete with SCO Unix. If I understand it correctly, SCO would have to show that SuSE Linux is primarily based on Unix, _and_ that the code was obtained from Novell. Seems far-fetched to me.

Sure, SuSE competes with SCO, but so does every other operating system, and so does Netware, for that matter. I don't think they have a prayer of being able to make the non-compete clause stick.

RE: No Deep Pockets
by Andrew G on Tue 18th Nov 2003 21:13 UTC

Well they are going after BSD because they believe there is BSD code in Linux. They need to invalidate the settlement to show that IBM owes them.

Therefore they want IBM and others money not non-profit BSD's money, but BSD is a necessary target to achieve those goals.

v Blondie
by brando on Tue 18th Nov 2003 21:16 UTC
Re: Hey Apple...
by Annon on Tue 18th Nov 2003 21:22 UTC

"...better get your legal guns loaded, Darl's coming for OS X now."

I was told just last night, by an old time Novell guy, that one of the early Apple OS's was based on UNIX -- is there any truth to that, and wouldn't Apple still have their original UNIX license?

Just wondering.

SCO...what a hoot
by Will on Tue 18th Nov 2003 21:36 UTC

SCO doesn't need deep pockets for BSD, they're after precedent, not $$$ in this case.

What I'm curious about is how they can actually do this.

AT&T was one party in that lawsuit, and I question whether when SCO bought "unix", that they essentially bought all of the baggage and what not that makes them the same "party" of the suit that AT&T was.

The other interesting bits is that they have to go after the BSD and SYS V of the day, not todays versions as they're different animals, because that's when the fork happened.

The biggest problem with the AT&T lawsuit, though, was that it was simply "settled", there was (as I recall) no actual judgment.

Only BSD (or, perhaps Berkley) and AT&T (now perhaps SCO) are privy to the details of the settlement.

The concern is whether the BSDs has been behaving a certain way based on initimate private knowledge of the settlement, or by what THEY BELIEVE to be in the settlement. And the devil is always in the details, as the settlement is simply not public.

So who knows. No doubt SCO is just pouring more fuel on its own pyre, but it's all the smoke that's getting in everyones eyes right now.

v Hey SCO, go pick on these violators...
by I'm not telling on Tue 18th Nov 2003 21:50 UTC
AUX or Applix
by Anonymous on Tue 18th Nov 2003 21:58 UTC

"I was told just last night, by an old time Novell guy, that one of the early Apple OS's was based on UNIX -- is there any truth to that, and wouldn't Apple still have their original UNIX license? "

He's probably referring to Apple's Unix (AUX) or Apple's Linux (Applix)

The Open Group has Apple <a href="http://www.unix-systems.org/what_is_unix/single_unix_specification.... as one of the companies that support the single unix specification.

@Annon
by Drill Sgt on Tue 18th Nov 2003 22:04 UTC

"I was told just last night, by an old time Novell guy, that one of the early Apple OS's was based on UNIX -- is there any truth to that, and wouldn't Apple still have their original UNIX license?"

Don't need the old versions. The new OSX is based on Darwin, which is BSD based.

I personally think SCO management is having a flashback due to a little too much indulging back in the 60's....

v SCO's new slogan
by BustaRhymes on Tue 18th Nov 2003 22:11 UTC
RE: Actually
by John Blink on Tue 18th Nov 2003 22:12 UTC

It hasn't been mention here on OSNEWS but SCO is suing Novell for buying SuSE. Novell had a non compete agreemnet with SCO from the selling of Unix in 95. Selling Linux is definetly competing with SCO Unix.

Now I really don't understand that non-compete agreement. Wasn't Novell already competing with SCO before the acquisition?

BSD Code
by NixUser on Tue 18th Nov 2003 22:18 UTC

There are quite a few intersting remarks with respect to *BSD.

But just to name a few people that used *BSD code.
Microsoft TCP stack (its been a theory). However MS unix tools do use NetBSD. The company that supplys the tools is www.interix.com. (Poor, Poor MS) ;-)

SunOS (sun.com). However, since sun bought the rights to the system v release (v?) and created solaris, I am not sure how much of the original code is left after they merged SunOS and Solaris. Also the terms and condition of the sale when sun sold it to ???

Nokia I believe uses the OS for their firewall.

Juniper routers uses the code for their routers (Junos).

Also what ever code was left in the System 5 may effect anyone that has ever purchased the rights to it. (I think). I wonder what HP thinks?

I guess they are going after anyone who uses BSD code. That would include yahoo, sendmail, apache, UUNet and etc (just to name a few). I wonder if they are going to attack the BSD license since they have alread went after the GPL?

As for moral high ground? I believe that there is a place in this world for both Linux and BSD.

A/UX
by Owen Anderson on Tue 18th Nov 2003 22:18 UTC

There was an actual Apple UNIX a long time ago, called A/UX, or more commonly just AUX. It was based on Sys V.2, with some changes backported from V.3 and V.4, and some networking bits taken from BSD 4.2.

It's only real claim to fame was its excellent emulation abilities. On ancient M68K machines, it was able to concurrently emulate: pure UNIX, 32-bit Macintosh, and 24-bit Macintosh. It even had an X11 port, and exposed a subset of the Macintosh GUI API as an X11 toolkit. It compiled and was compiled with GCC 2.7.

It was never widely adopted, and was effectively killed off by the move to PowerPC processors. If you're still interested, check out this site: http://www.applefritter.com/ui/aux/

Re: AUX or Applix
by John Blink on Tue 18th Nov 2003 22:22 UTC

or Apple's Linux (Applix)

Huh!! What?

SCO "UNIX" not up to current spec!
by Hank on Tue 18th Nov 2003 22:27 UTC

The OpenGroup maintains the rights to grant the UNIX trademark on a product based on if it passes the certification tests to varying degrees. Want to hear a shocker? SCO's "Unix" offerings aren't certified to the latest spec--UNIX 98. SCO's products last registration was with the UNIX 95 spec. They have yet to be recertified on any of the '98 specs--regular, Workstation, or server. Because they do meet the UNIX 95 spec, they still have the right to call themselves UNIX (all upper case et cetera). However unlike their favorite whipping boys--Solaris 7 through 9, Tru64, and especially AIX--they aren't even holders of the latest certification. How ironic.

RE: AUX or Applix, Re: Hey Apple..., @Annon
by Annon on Tue 18th Nov 2003 22:39 UTC

I found this about the early Apple Lisa -- 1983. I think this is what the guy was referring to when he told me the early Apple OS was based on UNIX. His statment wasn't entirely true.

"Re-writing UNIX to conform to the Lisa's requirements would have been very costly and more time consuming than was practical, so Apple wrote an OS for the Lisa from the ground up."

"The Apple Lisa supports several operating systems in addition to the Lisa OS including Unix, CP/M, XENIX, and the Mac OS (with the MacWorks emulator)"

I got the info from here:
http://www.cs.utc.edu/jdumas/cs460/papersfa02/applelisa/#os

Follow the money...
by ComputerVision on Tue 18th Nov 2003 22:41 UTC

Why does SCO stock always seem to go up when current news/research indicate that it should be going down? Somebody (with money) is betting on SCO winning (or at least creating enough FUD to delay adoption of open source operating systems). Somehow, somewhere, there is a lot of money riding on SCO and it's effect on open source software. I don't think this issue will be resolved by logic. There is just too much money riding on this issue to insure that justice will prevail. Almost everyone who has anything to do with writing software has a stake in this issue - either from the proprietary side or the open side.

...
by Anonymous on Tue 18th Nov 2003 22:41 UTC

Looks like the SCO is a lawsuit organization.

I've heard it all now!
by Anonymous on Tue 18th Nov 2003 22:42 UTC

I don't think even sco can top this!

hrmm
by Anonymous on Tue 18th Nov 2003 23:11 UTC

Wouldn't this mean that Microsoft would also be liable since their TCP/IP stack was based on BSD code?

RE: hrmm
by Anonymous on Tue 18th Nov 2003 23:21 UTC

"Wouldn't this mean that Microsoft would also be liable since their TCP/IP stack was based on BSD code?"

Normally yes, but remember MS has paid SCO since this all began for the "License" fees SCO asked for. With paying the "License" fee they would be in compliance so not a target.

Bill Sykes & NixUser
by dpi on Tue 18th Nov 2003 23:31 UTC

"Novell had a non compete agreemnet with SCO from the selling of Unix in 95."

You forgot to mention this is according to SCO. According to Novell, this isn't true.

"Selling Linux is definetly competing with SCO Unix."

Highly debatable.

It seems you're repeating what the newsitem said, which hasn't actually been proved yet and it is already clear these so-called ''facts'' are obvious. I think next time you can better also provide a URL with your non-original babbling.

"However MS unix tools do use NetBSD. The company that supplys the tools is www.interix.com. (Poor, Poor MS) ;-)"

OpenBSD too http://www.deadly.org/article.php3?sid=20030927090008

Cisco, among others, use OpenSSH (BSDLv2). Just see the recent advisories by them at the times OpenSSH <= 3.4 was vulnerable to a remote compromise.

Stupid SCO
by dustymugs on Tue 18th Nov 2003 23:59 UTC

If SCO goes after BSD, they might as well shoot themselves in the foot. We all remember what happened when ATT went after University of California over BSD before, they were sent packing in defeat.

Theres no way SCO has enough money to take on the UC system and IBM, let IBM alone.

Microsoft and SCO
by MB on Wed 19th Nov 2003 00:10 UTC

If I remember correctly, Microsoft once sued SCO (back in the 80's for something having to do with XENIX I think. Before that, they were actually close partners). Funny how they've come together because of common enemies like IBM and Linux.

Did SCO actually say this?
by Dah'dee on Wed 19th Nov 2003 00:14 UTC

Or is the author of the article on SourceForge just speculating? The only quote I saw was from McBride - "broad and deep" was all.

If they had actually announced anything I'd expect something like "SCO spoksperson so and so today announced that...

The Truth About the Non Compete
by Anonymous on Wed 19th Nov 2003 00:15 UTC

The truth about the non-compete is that there is no Non Compete Agreement in the traditional sense. (Generally, a non compete agreement is a contract in itself.) However, there is a tiny clause that reads:

"Seller agrees that it shall use the Licensed Technology only (i) for internal purposes without restriction or (ii) for resale in bundled or integrated products sold by Seller which are not directly competitive with the core products of Buyer and in which the Licensed Technology does not constitute a primary portion of the value of the total bundled or integrated product."

Again, this isn't a non compete agreement; this clause refers to how Novell uses the code being licensed. This would not only require that Linux is PRIMARILY System V which is ridiculous (even SCO has primarily focused on core features added to Linux, not the whole of it), but would apparently actually require that Linux was the code BEING LICENSED by SCO at the time.

Not only that this agreement was between the Old SCO and Novell, and it is not clear that Novell would be held a party to an agreement with a company that no longer exists.

Settlement
by Anonymous on Wed 19th Nov 2003 00:22 UTC

I've been reading "Open Sources", and there is a chapter by Marshall McKusick (BSD Unix). A section talks about a settlement between Novell (who owned USL which was a branch of ATT dealing with Unix stuff) and BSDI).

http://www.oreilly.com/catalog/opensources/book/kirkmck.html

The pertinent part of the section is:

"Soon after the filing in state court, USL was bought from AT&T by Novell. The CEO of Novell, Ray Noorda, stated publicly that he would rather compete in the marketplace than in court. By the summer of 1993, settlement talks had started. Unfortunately, the two sides had dug in so deep that the talks proceed slowly. With some further prodding by Ray Noorda on the USL side, many of the sticking points were removed and a settlement was finally reached in January 1994. The result was that three files were removed from the 18,000 that made up Networking Release 2, and a number of minor changes were made to other files. In addition, the University agreed to add USL copyrights to about 70 files, although those files continued to be freely redistributed."

Once an agreement has been reached by two parties, surely one party cannot retry a case? (unless the other party has breached the terms of the agreement).

This means:

(i) that SCO are unlikely to have a case, and are unlikely to even be able to begin one. However, it would improve their stocks...

(ii) If their case depends upon BSD being found in breach of some agreement, Linux must therefore be clean. It uses BSD code in places (which properly adheres to the licensing - credits are given where they are required), but SCO have realised that despite all this "spectral analysis", Linux does NOT infringe SCO SysV code outside of what came from BSD. Which of course was released under agreement.

Is there any case? Doubt it.

SCO and BSDi Agreement
by Anonymous on Wed 19th Nov 2003 00:26 UTC

Everyone should check out Groklaw--much better understanding of the law and tighter on her facts.

But this is what she has to say about the mention of BSDi:

"They intend to go forward now on a second front, against end users. First they will target a victim from among the 1,500 who got letters, within the next 90 days. They want a victim who represents the problem, as they see it, to make an example of. But that is only the starting point, not the ending point. It could be an HP end user. They intend to enforce copyrights in System V and in code they say is being violated stemming from the old BSDi settlement. My impression was that the SCOForum was such a bust, they had to come up with some new code somewhere and so the old BSDi stuff is being trotted out. They will show that code to end users down the road."

My take is that they intend to use documents from the settlement and law suit to show what code was determined to belong to AT&T (and thusly them NOW) and what belonged to BSD. THEY ARE NOT NECESSARILY CHALLENGING THAT AGREEMENT AT ALL. Of course, the settlement is sealed and they weren't a party to it. So how they are going to go about this, what they know, and whether this would benefit them any better than pointing to the code that they purchased in the first place is yet to be seen.

BSD Networking Stack
by Anonymous on Wed 19th Nov 2003 01:15 UTC

OK, OK, we all love the BSD networking stack, but Windows does *not* use it. It used it once, for a brief time whilst they wrote their own stack. This is just a fallacy.

http://66.102.11.104/search?q=cache:OKPtQs1aiM8J:www.kuro5hin.org/s...

SCO release information
by NixUser on Wed 19th Nov 2003 01:37 UTC

I'm happy to let you know that Caldera International has placed the ancient UNIX releases (V1-7 and 32V) under a "BSD-style" license. I've attached a PDF of the license letter hereto. Feel free to propogate it as you see fit.

The email:
http://www.lemis.com/grog/UNIX/

The PDF of the license letter:
http://www.lemis.com/grog/UNIX/ancient-source-all.pdf

Looks like sco is not sharing their meds with anyone. Kind of sad isnt it.

???
by rspickles on Wed 19th Nov 2003 02:26 UTC

The settlement between ATT and BSD was in effect a private agreement (read contract). And yes contracts can be set aside. In the case of fraud, incompetence, or if it requires violations of the law to enforce. Often even if one of these is proven then only small parts of a contract is voided. For SCO to have much of a chance here they will need to prove that one of the parties committed fraud in the handling of the case or the ATT and its lawyers were incompetent to the point that the court needs to step in to protect them from their own actions. Working against SCO will be the nine years that has expired without any of the intervening owners objecting to the settlement, The fact that the settlement was in place accepted when they purchased system V code. That the status quo will be what the courts enforce without proof of one of the above. Just proving that the deal was poorly thought out will not suffice, there is no legal protection for competent people not taking every action to protect themselves. What more ATT will not do anything help SCO – and even if SCO proves that ATT and their lawyers were proven incompetent then they would still lose as that would also surely render the sale of system V code by ATT null and void.

Newsforge is bunk
by top speed on Wed 19th Nov 2003 02:43 UTC

They're not 're-opening' that case for retrial at all. Simply taking positive aspects out of the settlment to use against Linux, such as code they effectively had exclusive rights over. Newsforge is trotting out this BS to distract from the facts.

Injunction
by Anonymous on Wed 19th Nov 2003 02:54 UTC

I don't think that it is possible to reopen the AT&T/BSD lawsuit. At least that was my understanding (since only a few people actually have seens everything in writing).
I do think that IBM has a chance to stop SCO from filing more lawsuits. Companies that bought license to run Linux recently probably have a good class action lawsuit agains SCO.
I would personally try securities fraud, too.

I would like to hear their legal counsel's opinion what do thy think about their (sco and the lawyer[s]) chances of being disbarred and conviced of a felony.

Still puzzled
by zen on Wed 19th Nov 2003 04:03 UTC

SCO is not saying what code is infringing. Some people have been saying its something to do with SMP code. SCO seems to maintain the position that there is "a lot more".

If there is "a lot more" then why did SCO release OpenLinux (I guess formerly Caldera)? Ironic that they called it "Open" Linux to begin with. And then why is there still a link (though it doesn't work now.... wonder why) http://www.caldera.com/products/server/ here to download the source code.

Why has SCO not noticed *YEARS* ago that the Linux source code was infringing on their IP. And, why didn't they check the source code first - before - releasing OpenLinux (or Caldera??) under the GPL with full source code?

Maybe I didn't get all the facts ... or maybe there's a few screws loose @ SCO among the board members/upper management. Would some explain these gaps or provide a link to enlighten me if I missed something?

Re: Still Puzzled
by Jud on Wed 19th Nov 2003 04:21 UTC

Oh, that's not even the best of it. Apparently Darl said at the same news conference that *even if all the offending code was removed* it wouldn't cure the problem. (Someone wanna confirm this?)

I'm a lawyer but I gotta tell ya, the more the man talks the more my poor head spins.

The messenger, Joe Barr, doesn't like BSD.
by Anonymous on Wed 19th Nov 2003 04:31 UTC

Joe Barr was a OS/2 proponent. He blames Microsoft for killing OS/2 and does not see BSD as a Microsoft killer.

He sees the GPL/Linux as a Microsoft killer. So he's grasping at a straw about re-opening the case.

Look at the press release over at Yahoo!
"Code that has been identified includes Unix System V code as well as copyrighted code included in the 1994 settlement between Unix Systems Laboratories, Inc. and Berkeley Software Design, Inc." and "copyrights that were reaffirmed as a result of the BSDI settlement agreement" (the Linux kernel has code taken out of BSD and has the copyright REMOVED and the BSDI settlement affirms our rights)

@TopSpeed
by Archie Steel on Wed 19th Nov 2003 05:27 UTC

Simply taking positive aspects out of the settlment to use against Linux, such as code they effectively had exclusive rights over.

Like, you've of course read the settlement between USL and BSDi in order to make such a statement, right?

FYI, the settlement occured when AT&T realized that it could not win the case. There are no "positive aspects" of the settlement for SCO. There is BSD code in Linux, but as long as the copyright notice is included this is perfectly legal - unless SCO reopens the BSD case and somehow obtains a different verdict, invalidating the BSD license. Something which, to say the least, SCO has not a chance in the world of accomplishing.

SCO has already lost. These are the death throes.

@Anonymous (IP: ---.dyn.optonline.net)
by Archie Steel on Wed 19th Nov 2003 05:34 UTC

I would like to hear their legal counsel's opinion what do thy think about their (sco and the lawyer[s]) chances of being disbarred

I don't know about that, but Boies [i]is<i/> the subject of an inquiry by the Florida Bar. He faces three charges of ethics violation.

http://www.judicialaccountability.org/articles/Deboisgorelawyerbefo...

@TopSpeed
by Archie Steel on Wed 19th Nov 2003 06:01 UTC

Again you drink McBride's words as if they were the gospel. But this time you don't even bother to come up with your own arguments, but rather reprint an article. My, you're becoming lazy...

The fact of the matter is that SCO can only sue Novell if they prove that there is SysV code improperly placed in Linux. The text of the so-called "non-compete agreement" (it's actually just a short clause) requires that actual licensed code be used to compete.

Now, since there isn't any proof of misappropriated code in Linux, then SCO doesn't have a case against Novell.

Novell itself has been totally unimpressed by SCO's theatrics, which have also failed to shoot SCO's stock back up.

Here's what Novell had to say:

"PROVO, Utah Nov. 18, 2003 - Novell has seen the November 18 InfoWorld article in which SCO CEO Darl McBride refers to a supposed non-compete agreement between Novell and SCO. Mr. McBride's characterization of the agreements between Novell and SCO is inaccurate. There is no non-compete provision in those contracts, and the pending acquisition of SUSE LINUX does not violate any agreement between Novell and SCO.

Novell has received no formal communication from SCO on this particular issue. Novell understands its rights under the contracts very well, and will respond in due course should SCO choose to formally pursue this issue."

SCO has already lost. Get over it.

Salem Witch Trials
by k_semler on Wed 19th Nov 2003 06:27 UTC

This remindes me of the salem witch trials in a way. Then, a way to tell if your were not a witch was to try and drown you. If you drown, you were innocent of witchcraft. If you survived, you were considered a witch and burnt at the stake. Likewize, if the Linux kernel development project wishes to see the "infinging code", and signs an NDA, they would be considered giulty by propably the judge and jury. But if they fight it, and win, but the development group has no funding due to extravogant court costs, they will not be able to produce any new Linux kernels.

Either way, they are damned. It is kind of like asking someone if they want to get shot now and die less painfully, or get covered with honey while being chained to the ground naked on top of an anthill causing a very slow painful death as the ants eat your skin while you are alive.

Re: Salem Witch Trials
by Osten Quit on Wed 19th Nov 2003 07:36 UTC

That's witch talk!

BSD vs USL
by Gilbou on Wed 19th Nov 2003 08:42 UTC

In addition to the groups organized to freely redistribute systems built around the Networking Release 2 tape, a company, Berkeley Software Design, Incorporated (BSDI), was formed to develop and distribute a commercially supported version of the code. Like the other groups, they started by adding the six missing files that Bill Jolitz had written for his 386/BSD release. BSDI began selling their system including both source and binaries in January 1992 for $995. They began running advertisements touting their 99% discount over the price charged for System V source plus binary systems. Interested readers were told to call 1-800-ITS-Unix.

Shortly after BSDI began their sales campaign, they received a letter from Unix System Laboratories (USL) (a mostly-owned subsidiary of AT&T spun off to develop and sell Unix). The letter demanded that they stop promoting their product as Unix and in particular that they stop using the deceptive phone number. Although the phone number was promptly dropped and the advertisements changed to explain that the product was not Unix, USL was still unhappy and filed suit to enjoin BSDI from selling their product. The suit alleged that the BSDI product contained proprietary USL code and trade secrets. USL sought to get an injunction to halt BSDI's sales until the lawsuit was resolved, claiming that they would suffer irreparable harm from the loss of their trade secrets if the BSDI distributions continued.

At the preliminary hearing for the injunction, BSDI contended that they were simply using the sources being freely distributed by the University of California plus six additional files. They were willing to discuss the content of any of the six added files, but did not believe that they
should be held responsible for the files being distributed by the University of California. The judge agreed with BSDI's argument and told USL that they would have to restate their complaint based solely on the six files or he would dismiss it. Recognizing that they would have a hard
time making a case from just the six files, USL decided to refile the suit against both BSDI and the University of California. As before, USL requested an injunction on the shipping of Networking Release 2 from the University and on the BSDI products.

With the impending injunction hearing just a few short weeks away, preparation began in earnest. All the members of the CSRG were deposed as were nearly everyone employed at BSDI. Briefs, counter-briefs, and counter-counter-briefs flew back and forth between the lawyers. Keith Bostic and Kirk McKusick personally had to write several hundred pages
of material that found its way into various briefs.

In December 1992, Dickinson R. Debevoise, a United States District Judge in New Jersey, heard the arguments for the injunction. Although judges usually rule on injunction requests immediately, he decided to take it under advisement. On a Friday about six weeks later, he issued a
forty-page opinion in which he denied the injunction and threw out all but two of the complaints. The remaining two complaints were narrowed to recent copyrights and the possibility of the loss of trade secrets.
He also suggested that the matter should be heard in a state court system before being heard in the federal court system.

The University of California took the hint and rushed into California state court the following Monday morning with a counter-suit against USL. By filing first in California, the University had established the locale of any further state court action. Constitutional law requires all state filing to be done in a single state to prevent a litigant with deep pockets from bleeding an opponent dry by filing
fifty cases against them in every state. The result was that if USL wanted to take any action against the University in state courts, they would be forced to do so in California rather than in their home state of New Jersey.

--

And it gets intestesting when we discover that USL "stole" massive amounts of BSD code and illegally removing the Copyright notices from the source; the hunter becomes the hunted :

--

The University's suit claimed that USL had failed in their obligation to provide due credit to the University for the use of BSD code in System V as required by the license that they had signed with the University. If the claim were found to be valid, the University asked that USL be forced to reprint all their documentation with the appropriate due credit added, to notify all their licensees of their
oversight, and to run full-page advertisements in major publications such as The Wall Street Journal and Fortune magazine notifying the business world of their inadvertent oversight.

Soon after the filing in state court, USL was bought from AT&T by Novell. The CEO of Novell, Ray Noorda, stated publicly that he would rather compete in the marketplace than in court. By the summer of 1993, settlement talks had started. Unfortunately, the two sides had dug in so deep that the talks proceed slowly. With some further prodding by
Ray Noorda on the USL side, many of the sticking points were removed and a settlement was finally reached in January 1994. The result was that three files were removed from the 18,000 that made up Networking Release 2, and a number of minor changes were made to other files.
In addition, the University agreed to add USL copyrights to about 70 files, although those files continued to be freely redistributed.

--

And now the interesting part :

The lawsuit settlement also stipulated that USL would not sue any organization using 4.4BSD-Lite as the base for their system. So, all the BSD groups that were doing releases at that time, BSDI, NetBSD, and FreeBSD, had to restart their code base with the 4.4BSD-Lite sources into which they then merged their enhancements and improvements.
While this reintegration caused a short-term delay in the development of the various BSD systems, it was a blessing in disguise since it forced all the divergent groups to resynchronize with the three years of development that had occurred at the CSRG since the release of Networking Release 2.

-- --

I have put all the files on this page too:

http://perso.wanadoo.fr/gilbert.fernandes/usl_bsd/index.html

 Re: AUX or Applix
by Jason Walsj on Wed 19th Nov 2003 09:02 UTC

or Apple's Linux (Applix)

Huh!! What?


Apple UNIX rundown.

Quite apart from A/UX, Apple also supported Linux in the mid-1990s with a Microkernel distribution called MKLinux. Not sure if that's related to the OS X Microkernel, or whether that's just due to Avie Tevanien (spelling?) and NeXT.

Can't remember who initiated MKLinux, but it had a page on the Apple site at http://mklinux.apple.com -- don't bother, it's long gone. Prime Time Freeware sold the CDs. The main MKLInux website is now at http://www.mklinux.org/

Once upon a rainbow Apple also sold IBM AIX on PowerPC servers (as a replacement for A/UX when the 68k series of Macs were killed.)

On aonther subject, I wonder if SCO will go after Apple. I personally doubt it -- too many lawsuits pending already, however in the unlikely event that SCO get to own BSD they'll surely go after Apple.

I doubt that Apple's UNIX licence would cover OS X from SCO ultra-litigatory fun, besides they haven't sold it since about 1994/5 (-ish) and it's probably expired. I can't imagine Apple buying an 'in perpetuity' licence.

Jason...

Reading the transcript on Groklaw
by Richard James on Wed 19th Nov 2003 09:21 UTC

I can not see exactly what SCO is doing about the BSD case. They seem to be umming and aaring about it. Here are the only two BSD snippets I could find, both are by Darl McBride.

This is not going to be something that is going to be measured in years, we do have copyrights out there now that are being broken, we have a situation with other settlement agreements with respect to the BSD case from a few years ago where we do have a legal settlement, we're in strong shape to go out and start enforcing these now and this is really what David and his team are going to be expanding their focus around.

And this one

But more importantly, what we are announcing today is a substantial number of copyright issues that relate to a settlement agreement that is already in place around the BSD settlement from the 1994 time frame. As we move forward, we will be outlining those issues.

I don't see any such announcement in the transcript. Was there more to this than just the teleconference?

How does SCO have any settlement agreement from the BSD case? Thats what I don't understand.



BDS used by others
by Fabio Alemagna on Wed 19th Nov 2003 09:51 UTC

@ Nate
> How many OS's use BSD code?

Almost every OS I know of, Nate, Windows included.

re: SCO isn't going anywhere Archie
by ryan on Wed 19th Nov 2003 14:09 UTC

don't put much trust in IDG.

Re. Very Interesting
by Lennart Fridén on Wed 19th Nov 2003 14:32 UTC

@ Nate Downes

"If they go after BSD, their #1 target would be Apple."

Hmm...BSd wise, maybe. They're still after bigger fish such as IBM. Going after BSD would mainly be in order to get a new bat to swing at the Linux crowd.

"How many OS's use BSD code?"

Apart from the obvious ones (FreeBSD, NetBSD, OpenBSD, Darwin/MacOS X) just about every OS with a TCP/IP stack. Not to mention that Microsoft has been harvesting loads of code from FreeBSD and the like.

Still, Microsoft won't be targeted by SCO as

a) they've "invested" in a UNIX license and
b) my guts tells me that MS is "investing" in SCO's lawsuit
against all things Linux as per the enemies of my enemies rule.

Not Such A Bad Idea, Really
by justo on Wed 19th Nov 2003 14:38 UTC

If I were McBride, I'd go after the settlement too. Why not?

The only downside to the strategy is that SCO was a beneficiary of the settlement as well, so it's a bit hard to claim that the settlement somehow breached SCO's IP rights. Without the settlement, SCO wouldn't even be in business!

Makes you wonder what Boise and McBride are smoking!


Re: Fabio
by Nate Downes on Wed 19th Nov 2003 14:44 UTC

I thought so.

So it is SCO vs. THE WORLD!

more lawsuits by sco
by ryan on Wed 19th Nov 2003 15:13 UTC

http://news.com.com/2100-7344_3-5108956.html?tag=nefd_top


this cr*p is just ridiculous. its the oh i guess i don't have a case so i'll try suing someone else for some other reason strategy. It is not obvious by this point that SCO does not seek to protect any intellectual property at all. they seek to attack linux and open source for anything they can concieve. This tortious interference supreme.

Looks like the prediction is right
by Zero on Wed 19th Nov 2003 15:23 UTC

It looks like if SCO is bluffing, the prediction is right:

SCO To Expand Its Lawsuit Beyond Linux
http://www.internetnews.com/ent-news/article.php/3110981

It looks like it will be the biggest scam in the IT history.

Just accusing free software has infringing code and threatens to sue and your stock price will magically rise.

A Sad Day
by Andrew G on Wed 19th Nov 2003 16:12 UTC

I was reading that David Boies, SCO legal council is planning on suing a very large company which currently uses Linux for violation of copyright.

Basically it is legal to sue someone for using a product before it has ben established there is infiongement.

Very sad.

re: A Sad Day
by Steve W on Wed 19th Nov 2003 16:57 UTC

A Sad Day
By Andrew G (IP: ---.biz.rr.com) - Posted on 2003-11-19 16:12:58
I was reading that David Boies, SCO legal council is planning on suing a very large company which currently uses Linux for violation of copyright.

Basically it is legal to sue someone for using a product before it has ben established there is infiongement.

Very sad.


It's legal to sue somebody for anything.

God this is like a soap opera
by Nicholas James on Wed 19th Nov 2003 18:44 UTC

The same thing keeps geting drug out, they accuse without proof. Only insulting our inteligence.

re: A Sad Day
by ryan on Wed 19th Nov 2003 18:46 UTC

"It's legal to sue somebody for anything."


indeed it is but that does not mean you have a case and the same applies to the defense who will counter sue. Going after big companies with the $$ to fight sco is a mistake. Imagine if its someone like Ford, GM or the UC system. They will eat sco for lunch and mr boies whom i always thought screwed up the doj case by refusing to go after the bootloader.

RE: Re: re: A Sad Day
by Andrew G on Wed 19th Nov 2003 20:23 UTC

I think that they should have something like they have in the UK where if you sue and loose you pay all the legal costs.

Of course SCO is going for broke or bust, so they care nothing if they go bankrupt in the end.

Also you should not be able to sue an end user for copyright infringement before it has been established that the copyright is indeed in violation. It is just common sense. Most companies realise this but when you have a company like SCO which is just irresponsible. Also David Boies obviosuly does not have one principaled bone in his body. There is nothing preventing him saying no to this kind of irresponsible litigation.

Boies and SCO executives should never work in their industries again as far as I am concerned. Disgrace should be associated with all their names.

Official: BSD may be targetted next year
by Great Cthulhu aka Archie Steel on Wed 19th Nov 2003 20:51 UTC

Darl McBride: "With our limited energies and what our guys are going through, we probably won't file any suits against BSD until sometime in the first half of next year."

Read it here:

http://www.atnewyork.com/news/article.php/3110981

So, TopSpeed, will you now admit that you were wrong?

re: toptroll
by bagdadbob on Wed 19th Nov 2003 22:04 UTC

Let's use our heads for a moment, shall we? Anyone can make claims and accusations in the media. Anyone can sue anyone else for any claim that they chose to make. Accusations are not proof - it does not mean the other party is guilty of anything. That is up to the court to decide that.

Quoting online media concerning what McBride says only goes to prove that he likes to be heard (and quite often it seems), not that he has any evidence to substantiate his claim. Remember: last time he showed his "evidence" it turned out to be nothing.

re: toptroll
by ryan on Wed 19th Nov 2003 22:31 UTC

"Quoting online media concerning what McBride says only goes to prove that he likes to be heard (and quite often it seems), not that he has any evidence to substantiate his claim. Remember: last time he showed his "evidence" it turned out to be nothing"

that is what is really bothering me. he has hijacked the court system and turned it into his own pr machine. He has been coy about showing an actual case and seems prepared to move onto any reason, more likely non-reason, to sue anyone and anything in the OSS realm. it is so sad that america's courts (hint its the really judges deciding) allow this.

SCO does not deserve news space
by Tom on Wed 19th Nov 2003 22:37 UTC

I wish OS News and all of the rest would quit publishing anything about SCO.

Right Media
by James on Wed 19th Nov 2003 23:06 UTC

As far as I'm concerned this seems like one giant attempt to get media attention. Take away the media and where would SCO be? They'd be the same place they were back before they started this nonsense: unknown and unnecessary.

However we're as much to blame as anyone else -- for reading this tripe and falling for their ploy. If people (especially in America) spent more time worrying about their own lives and less time worrying about the highschool-rumour-media-system then we wouldn't have these sorts of problems.

Re: Sad Day
by Jud on Thu 20th Nov 2003 03:15 UTC

"Also you should not be able to sue an end user for copyright infringement before it has been established that the copyright is indeed in violation."

Kind of like saying you shouldn't be able to put someone on trial for murder unless you have already proved he's the killer.

IOW, that's what infringement suits are *for* - to establish a copyright violation (and amount of damages).

Re Boies/DOJ - the DOJ was running and setting strategy for the suit, and made the decision to settle after winning at trial (though the remedy, not liability, was reversed on appeal). Boies was hired to do what by all accounts he did exceedingly well - the trial work, such as cross-examining MS's witnesses.

What is it about the bootloader that you think would have led to a better result than what actually happened, i.e., that MS was proved to have committed antitrust violations?

Boies has a reputation, well-deserved up to this point, of being one of the top lawyers in the U.S. That's why it puzzles me that his firm is in this SCO thing.

RE:Sad Day
by Archie Steel on Thu 20th Nov 2003 03:51 UTC

Actually, I don't see how a end-user could be guilty of copyright infringement. As the name implies, copyright concerns itself with the act of copying, not of owning or using. You cannot be held liable of copyright infringement for using something - you can, however, be liable of infringement if you made (and distributed) copies of something without the copyright holder's permission.

Incidentally, that's why the RIAA is targeting those who illegally share songs, not those who download them. The act of downloading is not in itself illegal, but the act of making illegal copies available (in essence, distributing them) is copyright infringement.

Boies has a reputation, well-deserved up to this point, of being one of the top lawyers in the U.S.

Well-deserved? I don't know about that. He did lose the Gore case, and even though he was successful against Microsoft, that didn't amount to much in the end. Also, he now risks sanctions from the Florida Bar over an ethics violation.

I think Boies and al. saw a great opportunity to make lots of money by getting paid a hefty sum by SCO, plus receiving lots of share which they'll be able to sell before the whole thing collapses.

In other words, they're vultures about to feast on SCO's force-fed carcass. IMO, of course - don't sue me for libel! :-)

@dpi
by Bill Sykes on Thu 20th Nov 2003 04:25 UTC

"I think next time you can better also provide a URL with your non-original babbling."

I am sorry I didn't realize this was your forum. Why resort to personal attacks?

Archie
by top speed on Thu 20th Nov 2003 05:00 UTC

The point I'm making is *THIS IS NOT AGAINST BSD OPERATING SYSTEMS*, which is how the authors of these articles are trying to twist the story, but instead the suit will against BSD the entity for contributing code to Linux that they did not have rights to do so.

The free software people are all flipped out over this without even understanding what the issue is.

@TopSpeed
by Archie Steel on Thu 20th Nov 2003 05:34 UTC

Can you elaborate on the differences between BSD "the entity" and the BSD OSes?

Of course, you can't sue an operating system, since it is not a person or a corporation/institution. In the same vein, you can't sue Linux itself. But it's clear from Darl's quote that he's now targeting the BSDs as much as he can be said to target Linux.

Not that it matters. SCO has already lost. Boies and co. will cash in their stock before the whole house of cards crashes down.

@TopSpeed
by Archie Steel on Thu 20th Nov 2003 05:47 UTC

At least you agree that what SCO is basically doing is trying to overturn the agreement between BSDi and USL. I very much doubt they will succeed - there was a reason why USL settled: it's because they knew they couldn't win. Just like SCO - except that this time the countersuits will vaporize SCO...

RE: jud's comment
by Anonymous on Thu 20th Nov 2003 14:54 UTC

>> "Also you should not be able to sue an end user for
>> copyright infringement before it has been established
>> that the copyright is indeed in violation."
>
> Kind of like saying you shouldn't be able to put someone on trial for murder
> unless you have already proved he's the killer.

Wrong.

It's more like saying you can't put someone on for trial for murder unless you have a DEAD BODY. Once you have "Habeus Corpus" (have the body), you can prosecute for murder.

Right now, SCO is claiming that there is a body somewhere, but are refusing to show anyone where it is. To now bring charges against someone for this is ludcrous!

No way
by Sam on Thu 20th Nov 2003 15:20 UTC

This is nuts.

Know your GNU.
by Mr. FSF on Thu 20th Nov 2003 18:04 UTC

I think we all need to arm ourselves with knowledge. If we do not know the history of the GPL or how the free software movement has come about, we are less adept at defending ourselves from the abusive claims of the likes of SCO. I would recommend listening to this:

http://www.gnu.org/philosophy/audio/audio.html

Recently I discovered a bunch of these speeches by RMS, and despite having had a not very favorable opinion about him formed mainly from comments that others had made about him, I discovered that he raises some very provacative issues in his speeches. When he talks about the history of the project, I can also understand why he desires some credit for his and his group's efforts. He did afterall, quit a nice cushy job on principle - I've never done that, I think most people haven't. I respect that "put your money where your mouth is" level of conviction.

Anyway, I don't know that I concurr with all he says, but I do have a lot more respect for him after listening to his talks for a few hours. And incidently, while he may not sparkle like a movie star, his presentations are good. And that is how it should be - they are informative works rather than works of entertainment.

Feel free to copy this comment and spread it.

Re: No way
by takethebluepill on Thu 20th Nov 2003 21:08 UTC

It sure is, and it's a sterling example of why we need Tort reform int his country. Way too many frivolous lawsuits with the taxpayer being footed the bill time and time again.

Speaking of BSD
by takethebluepill on Thu 20th Nov 2003 21:10 UTC

Does anybody happen to know when 4.9 will be out on CDs? I can't find it anywhere...