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Latest on SCO/Linux thing

OK, so SCO has actually provided the 65 files that it claims are exact verbatim copies of their unix distribution that were allegedly stolen and incorporated into Linux:

http://www.nytimes.com/2003/12/23/technology/23linux.html

Linus has examined them and discovered that most of these files that are part of SCO's unix distribution are actually files that Linus himself personally wrote, and were included as far back as the very first 0.001 version release of Linux.

Sounds like he has a pretty good case.

And since those files were GPL'd we know what that means -- SCO's distribution has just been GPL'd.

SCO shouldn't have stolen those files from Linus.

Dennis Atkins
Tuesday, December 23, 2003

Using GPL code in a product does NOT make that product GPL, despite what may slashdotters seem to think. It just takes away the right to distribute the derived work UNLESS it is distributed under the GPL.

Said differently, no judge will ever make you open up your source even if it is derived from a GPLd source. If you don't GPL your own code, however, you may be liable for copyright infringement -- which, if I recall correctly, is $150,000 per copy in some US states. Now, take your peek - GPL your own code, or pay up $150,000,000 (If you distribute just 1000 copies).

Ori Berger
Tuesday, December 23, 2003

s/your peek/your pick/g

Ori Berger
Tuesday, December 23, 2003

It begins to look like thats what they have done. OR they just picked some likely looking files and are trying to pull a scam.

Either way, to me, this proves that what they are up to is not what they claim. They are not trying to protect their IP, and the lawsuit againt IBM is likely to be bullsh*it aswell.

For some reason they are trying to buy time, and divert attention. Pump and dump maybe?

Eric DeBois
Tuesday, December 23, 2003

"Said differently, no judge will ever make you open up your source even if it is derived from a GPLd source. "

I disagree. IP law is changing. Shrink wrap licenses are now being upheld by the courts -- if you use the software and the only way you can use it is by agreeing to the license, then in the US at least it is considered the same as signing a contract in blood.

When a company that owns Unix IP mixes that IP with GPL'd code and distributes the result, the law is clear -- the company has accepted the GPL the same as if they filed a notorized affidavit with the FSF.

Unix is wide open now.

Dennis Atkins
Tuesday, December 23, 2003

Hey, here's an idea. What if Linus is the one who's telling porkies?

me
Tuesday, December 23, 2003

"And since those files were GPL'd we know what that means -- SCO's distribution has just been GPL'd."

"Unix is wide open now."

I'd like to add a couple more gems.

-No one needs more than 640k or ram.

-There is a world market for personal computers of about five.

The courts will decide.  Not SCO, Not IBM, and most of all not Linus or Groklaw.

Mike
Tuesday, December 23, 2003

He could be, but it'd be a pretty bold move and unlike his style. Also, the claim to have been the actual programmer who created from scratch 100% of a file is very different from a claim that some unknown programmer in the past may have created something that you own the copyright to but you can not find any copies of older than that which the other guy has had since day 1.

Dennis Atkins
Tuesday, December 23, 2003

Dennis,
As much as this looks good for IBM and Linux, it will more then likely come down to who can convince a jury. (This assumes that the case is not thrown out). And until the jury comes back with its verdict, don’t assume a cakewalk.  IANAL but there have been cases in the US declared copyright infringement where had been ‘influenced’ by a prior work (I remember news of a copyright infringement case against George Harrison where the plaintiffs proved that he unknowingly plagiarized their music and he lost). By extension if Linus had access to any of the ability to access source code for UNIX when he was writing LINUX an extremely good lawyer may parlay that into “copyright infringement” and using sympathy for the “Little Guy” Get mean Ol’ IBM and that foreigner stealing US copyrighted material too.  So I will wait till either 1) IBM wins or 2) The case is dismissed before gloating over SCO’s stupidity.

A Software Build Guy
Tuesday, December 23, 2003

Well, these 65 files are not a part of the lawsuit, and the lawsuit is against IBM and not linux.

IBM, as far as I know, are only accused of donating their own code to linux, which may be a breach of contract.

All these other things SCO have been talking about... saying that THEIR code is in linux and that all linux users owes them money, is a different matter.

Eric DeBois
Tuesday, December 23, 2003

OK Build guy, I agree with you this is a possibility.

Just so no one's confused, my initial position based on SCO's statements and having seen some excerpts of the code that were shown at the SCO slide show, was that Linux was infringing since the code was obviously identical to some old AT&T unix code that SCO owns. But hearing that Linux says that he personally wrote that code seems a very bold step and at least moves this case to a new understanding -- both sides agree that the exact same copyrighted code, line for line, exists in both code bases. That's a little different from an issue of influence. Let's say Linus was influenced by some unix code he once saw. OK, but then how did his code end up in the standard unix codebase? That seems rather strange. Mysterious actually. Either Linus wrote the code that is part of standard unix or he didn't. If he didn't, then the Linux OS is in trouble. If he did then, I suppose it could be asked whether he was influenced by some proto-unix code that existed before his own code was copied into the original unix. That seems a strange case to make. I'm skeptical a jury would buy it. I think the jury is going to side with whichever side actually wrote the identical code that is in each codebase. Wouldn't you?

Dennis Atkins
Tuesday, December 23, 2003

Bear in mind that this highly important code is simply the values of the constants defined in errno.h and the like.

SCOs argument is not that anyone copied these files or cut-n-pasted etc.  But that Linus (or whoever) deliberately took values for these symbolic constants that were the same as UNIX.  As this allows ABI compatibility, you are infringing.

So the super secret code that SCO is threatening lawsuits over is about 100 lines like this:
#define EPERM 1
#define ENOENT 2
#define ESRCH  3

Well hell,  that's worth 50B or whatever they're claiming!?!  Now, the ancient linux archives are useful here,  back in 0.0.1 linus had the following to say about the values he chose:

"as I hadn't got any other source of information about possible error numbers, I was forced to use the same numbers as minix. Hopefully these are posix or something. I wouldn't know (and posix isn't telling me - they want $$$ for their f***ing standard)."

So he just took the values minix.  No conspiracy to nuke SCO's business here.

I've given up even trying to be impartial in this matter.  SCO lie, then they get caught, so they make stuff up and lie again.

Michael Koziarski
Wednesday, December 24, 2003

Dennis,

I am not a lawyer and all that, but you don't have to agree to the GPL if you don't want to, it says so in the licence itself, "You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program", it also says: "it is not the intent of the section to claim rights or contest your rights to work written entirely by you".

So if GPL code if found in a company's product they can be ordered to stop distributing all the code until they clean it up and they may have to pay damages but they can't be told to GPL their own code.

There is a more technical explanation: http://www.groklaw.net/article.php?story=20031214210634851

About that code you have seen, can you tell anything more about it?

Andres
Wednesday, December 24, 2003

One advantage of Open Source is that it is very clear what went in and when, who from and how. It's all documented.

Nobody who's looked at the case in details seriously believes SCO is doing anythng else than fishing. And if it's talking about code that goes back to 1991, then why has the copyright owner waited until now to claim copyright infringement.

I suspect all they have done is look at the Linux code base and see if they can find places where it is the same as Unix.

Anyway the odds are that you can find GPL'd code that is the same as the SCO code and then the boot will be on the other foot.

Stephen Jones
Wednesday, December 24, 2003

If SCO's case depends upon the content of errno.h then it will fail.  Whilst its likely that Linus just used the regular errno.h constants which have been around since at least the late 70's (and SCO has yet to prove it has unfettered title to the original Bell Labs source, Novell disputes it ever sold title), its pretty much impossible not to have a Posix compliant OS without those same constants.

Indeed, I'd guess the same argument could be used against MS, Ultrix, Minix, QNX, Vax/VMS and for all I know Next as well as AIX.

Simon Lucy
Wednesday, December 24, 2003

"About that code you have seen, can you tell anything more about it?"

The slide show code? If I recall correctly, it was some code from within a malloc that was included in one of the standard unix distros - I think it was an AT&T unix and I think it was supposed to be an early unix, predating linux, but I've not been following this stuff closely. i think there are others that have more formal opinions about what was shown.

Dennis Atkins
Wednesday, December 24, 2003

Andres,

I reasonable interpretation of that section would be that you are not being forced to accept the GPL, but if you are using GPL'd code, you have accepted the license since there is no other way provided for you to use the code. The license doesn't provide for this remarkably flexible 'use of GPL code until sued and then it's ok to stop using it and everything will be fine' clause that I keep hearing advocated.

Dennis Atkins
Wednesday, December 24, 2003

Because the GPL is written is English, rather than Lawyer, then it will take legal precedents before we truly know what you can and cannot do. The imprecise language of the GPL is comforting to a non-lawyer, but very very scary in a court of law.

The truth is, this "use it until you get sued" might very well be something the judge can read out the GPL, and once it's set into precedent, that'll be how it works.

Brad Wilson (dotnetguy.techieswithcats.com)
Wednesday, December 24, 2003

Do note that the GPL was written by a lawyer. What's ambiguous in it?

As for SCO, the opinions here are more all-over-the-place than on slashdot (at least when viewing high-scored comments there). Anyone have a pointer to a basic summary? I could write an uninformed one:

1. Collect various organizations with 'unix IP' (Caldera, the SCO name (thi is not the original SCO), some other stuff.)
2. Make up stories/threats and publicize them.
3. Sell stock.
4. Repeat steps 2-4 until something stops it. Next deadline is 1/5, when they have to submit evidence to the court.

mb
Wednesday, December 24, 2003

Do note that contracts written by lawyers get questioned and pulled to pieces every day.

McBride clearly has principles and believes in this case. I would say he has very good prospects. It's the first time anyone has called all these little oss weenies to account.

me
Wednesday, December 24, 2003

"Do note that the GPL was written by a lawyer."

Last I knew, lawyers spoke both Legal and English, and nothing says they necessarily have to do either one very well. I've seen my share of legal documents, and the GPL doesn't resemble one in the least.

Brad Wilson (dotnetguy.techieswithcats.com)
Wednesday, December 24, 2003

Do you remember the old Borland 'like a book' license? That was in plain English. I don't think there's any requirement that legal agreements be written in jargon understood only by those in the self-protecting bar association. And interpreted randomly by judges. My assumption is that the author of the GPL understands how to write a legal agreement in non-jargon.

Dear "me":
Even if you don't like open source, do you want YOUR software business destroyed by some company which claims to own the intellectual propery rights to what you wrote?

mb
Wednesday, December 24, 2003

Its been said before but it bares repeating: If the GPL is invalid, the code does not fall into public domain. Copyright simply remains with the authors and no copying or redistributing is allowd.

Hence, arguning that the GPL doesnt hold water as a reason to exploit GPL:ed works wont work.

Eric DeBois
Wednesday, December 24, 2003

Dennis:

AFAICT, SCO is not claiming that those files are exact copies of some files in UnixWare or some such variant.  What they're claiming is that the files "contain verbatim copying" - as Michael Koziarski said above, they're claiming that declaring SIGKILL to be 9 is verbatim copying of SIGKILL and the number 9.

(Ironically, a few months ago an official SCO spokesperson specifically said they weren't going to make an issue of this, that the ABI was GPL, and they were only concerned about usage of SCO library files being run on Linux illegally.  (A legitimate concern, IMO, but one that really only affects SCO and their customers, not Linux users at large.)  So, this new twist is yet another reversal in their ongoing PR posturings.)

As it happens, however, a judge declared almost ten years ago that these exact header files were unlikely to be copyrightable, since they are not "expressive".

Copyright law requires creative expression as distinguished from mere facts.  Arguably, "9 means sigkill" is a fact, and the expression of the fact is constrained by the medium used.  IOW, since a dozen programmers given those facts would produce nearly identical header files, there is no creative expression to be protected, and therefore nothing copyrightable.  Which means that if I had access to the UnixWare source and copied these files and started passing them around, I'd almost certainly be immune to any copyright claims.

There are, of course, other causes of action relating to contract breach or trade secrets, but Linus is immune to these since he's not a Unix licensee (no contract to breach) and he obtained the relevant facts from public sources (no trade secret).  Finally, even if the header files *were* copyrightable, copyright infringement applies only to *copying*!  Independent creation of an identical work is perfectly legal under copyright law.  And independent creation by way of reading a spec is 100% by-the-book "clean room" implementation.  Linus never saw Unix source, he wrote from a spec, just as Compaq created their BIOS by having one group of people write a spec, and another group write the code.

If SCO ever brings something as crazy as this anywhere near the courtroom, they will be seriously screwed.  Judges are responsible for findings of law, and they decide what the jury gets to hear.  The defense would move to strike the copyright claims based on the non-copyrightability of the subject matter, and the judge will be able to do so because it doesn't require a finding of fact.  That is, because even if Linus *did* copy the code, he'd be innocent of copyright infringement.  So, any claim based on copyright infringement for these files will never get anywhere a jury.

(And that's even if we make the generous assumption that they *first* manage to prevail in their dispute with Novell over who owns the Unix copyrights in the first place!)

Phillip J. Eby
Wednesday, December 24, 2003

me: """McBride clearly has principles and believes in this case"""

That's for sure.  I'm not sure what those principles *are*, exactly, or what "this case" is, because he has yet to show anybody anything meaningful.

I keep thinking there must be some deeper scam to all this, that all the lies and backflips and dodging and stupidity from SCO are all to mask some deeper secret conspiracy.

But then I sigh and remind myself not to attribute to malice what can be adequately explained by stupidity and ignorance, of which the McBrides have so far exhibited in apalling abundance.  I suspect that McBride really *does* believe in this case, which unfortunately for him would just make him a sincere fool, rather than the lying thieving scum he appears to be.

Phillip J. Eby
Wednesday, December 24, 2003

Every time SCO and Darth McBride (or Darl Vader, if you prefer) make a statement about Linux they come with something different, often contradicting themselves.

It's like they have a strategy of constantly throwing up bogus arguments hoping that if they do it enough, one of them will eventually hit the bulls' eye.  Unfortunately for them they aren't even in the same room as the dart board.

T. Norman
Wednesday, December 24, 2003

> Even if you don't like open source, do you want YOUR software business destroyed by some company which claims to own the intellectual propery rights to what you wrote?

My company does not steal other people's work so there's absolutely zero chance of that happening. Why is it that oss people are so thick?

me
Thursday, December 25, 2003

Dear me,
              Does your company use hyperlinks? Well British Telecom would have claimed that your are infringing one of their patents.

              Use MS SQL server; then you are almost certainly infringing patents that MS put into the code but didn't pay a license for, meaning that you can be sued (this one actually appears to be a case with merit).

                Do you have lines like "OnError Goto" in your VB code? I bet you somebody has written that before and could try and claim that you've breached their copyright? And it's true you "stole it". You're not telling me you didn't use it because you saw it somewhere else, probably in a book.

Stephen Jones
Thursday, December 25, 2003

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