My Visit to SCO

The full story of what one person who signed SCO's NDA encountered on his trip to Lindon, Utah.
Derivative Works

The key to SCO's case against IBM appears to be an expansive notion of derivative works. SCO basically is arguing that any code developed on top of Unix is a derivative work of Unix. It is arguing that the contract with IBM, which SCO now owns, makes clear that any work derivative of Unix must remain confidential.

SCO is using a very extensive notion of derivative work. When I made that objection, SCO said it was for the court to decide. It is true that, so far as I know, no court has ever ruled on whether one piece of software is derivative of another. The question is whether a court would rule that even software entirely developed by IBM, such as JFS, is a derivative work of Unix because it was developed as a component of a Unix system. I think we can all agree that Unix with JFS is a derivative work of Unix; the question is whether JFS by itself is a derivative work.

In general, the issue is where the boundary lies between derivative works and independent works. All programs run on Unix use a Unix API; do they therefore become derivative works? Presumably not. However, when writing a program that runs on Unix, I might look at Unix source code if I have access to it; does that make my program a derivative work? It seems, from SCO's comments, that it might claim this is so.

I am not a lawyer. However, I hope the courts will not accept SCO's broad definition of derivative work. I think it would be dangerous for free software and for software development in general. Software thrives by extending work done by others. If adding a component to an existing piece of software means the component is owned by the owner of the existing software, then few people will add components. That would not be good for anybody.

It's worth noting that if a court does accept such a broad notion of derivative work, it will weaken SCO's defense against the allegations that Linux code was copied into UnixWare. That would seem to put SCO on the horns of a dilemma; I don't know how it plans to resolve it.

Secrecy

I asked a couple of times why SCO was being so secretive about everything. The answers were not particularly convincing. SCO said it was keeping its evidence secret because it is part of a legal action. The evidence will be presented in court. SCO doesn't want it to be tried in public before it is tried in court.

SCO said the Unix code always has been provided under confidentiality agreements, despite its wide distribution. It said that until the parties go to court, it doesn't want the Linux community to remove the code in question. SCO thinks it's more than changing a few lines of code. As noted above, it feels large chunks are derivative. It argued that even a full replacement would be in part based on the prior effort, and thus would itself be derivative, at least under the terms of the IBM contract.

My guess is SCO would prefer not to have to reveal any of its evidence. My guess is it would prefer to settle with IBM and to use the spectre of liability to get licensing revenue from Linux users. After all, in court SCO might lose. The current situation, in which it makes people feel nervous, is better for SCO. I don't know if I'm right, and if I am right I don't know how it will play out.

Chris Sontag appeared confident when he spoke to me. However, my sense is SCO knows it has a weak hand, one it is playing as strongly as it knows how. I expect SCO to keep upping the pressure in the press, to announce a Linux licensing scheme and to hope to start getting more revenue.

IBM and Patents

IBM is a past master of the IP extortion strategy. For example, see this Forbes article about IBM's shakedown of Sun in Sun's early days. For SCO to attack IBM using IP is somewhat like trying to eat a live tiger.

If IBM starts to feel nervous about this suit, it will unleash its patent portfolio. SCO is certain to be violating a number of IBM patents. Unless some preexisting patent agreement exists between SCO and IBM, SCO surely will lose against IBM's countersuit.

However, for IBM to unleash its patent portfolio against Unix would not be a good thing for free software. After all, Linux probably violates a number of those patents as well. Once the beast is awakened, who knows when, or if, it will go back to sleep. The best hope in such a case is that IBM will recognize the danger of killing the goose with the golden eggs and lay off on its own accord.

It's worth noting that the people running SCO and their lawyers may not appreciate the power of software patents. In my experience, few people outside the profession understand the degree to which every program of any scope violates patents. The software industry today survives only through an unstated agreement not to stir things up too much. We must hope this lawsuit isn't the big stirring spoon.

______________________

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Re: My Visit to SCO

Anonymous's picture

I don't understand what the fuss is over. SCO are well within their rights to sue IBM. Go SCO!!!

Re: My Visit to SCO

Buddy Miller's picture

Of course this is their right - but to the "standard citizen" this looks a little bit wired - same as all this patent-lawsuits in this days.

Re: My Visit to SCO

Carl Petros's picture

I wonder, why still people are writing about this.

Re: My Visit to SCO

Jack Marder's picture

You mean this article - or SCO

Re: My Visit to SCO

Carl Petros's picture

I mean SCO. Aren't they broke, right now ???

I have to agree ...

Giochi's picture

It is a little bit much in these days 8-))))) .... let's hope that they run out of cash very quickly.

Re: My Visit to SCO

John Raller's picture

Does somebody have a patent on life 8-)))))

re:Patents

Peter Pan's picture

No, but for sure they will have in the next furure 8-))))

re:Patents

JJ Miller's picture

Yes, they sue you for all shit, right now.

What about the rest of the world??? I wonder

Anonymous's picture

As I was reading it occurred to me that all this legal wrangling is going on in US court. I wonder if this is an opening for other countries to continue promote Open Source software more effectively than the US. It would seem to me that if US companies had to pay 300, 1000, whatever for each software product, and the rest of the world could get it for free to use in there locale, the US would be at a severe cost disadvantage.

Use the world's best and cheapest software, host it in Russia or Belize (wherever), might really tip the scales. Already I can see that shrink wrapped software sales is under pressure, grid computing and the internet could make remotely hosted software systems very attractive.

I don't know all the legal aspects, but I do knows that developing countries will be looking for competitive advantages. As IP becomes the strong market commodity in the future, it seems to me that countries that have the best terms will succeed in capturing market share. Isn't that how the US became an industrial powerhouse? Wasn't US law more entrepreneurial than England, where the industrial revolution began?

Re: My Visit to SCO

Anonymous's picture

This is a great piece of article. In retrospect everything you've predicted have all come true. Wow! You have a new fan in me!

Re: My Visit to SCO

Anonymous's picture

Doesn't the fact that there are jokes within the source code's comments suggest they were written by hippies and bums (Open Source programmers) rather than corporate developers (SCO or AT&T)? I just can't help thinking that these codes were indeed copied from Linux to SCO's stuff, not the other way around as SCO suggests.

Re: My Visit to SCO

Anonymous's picture

I just heard SCO is started to send bills to those it sent the original letter. I recommend that anyone that receives a letter asking for payment to file a complaint with the ftc at http://www.ftc.gov.

Re: writing errors = software errors

Anonymous's picture

As I read the comments of programmers, I noticed many speeling and grammatical errors. If they code like they write, no wonder there is so much buggy software!

Re: writing errors = software errors

Anonymous's picture

Next time use spell check ... dork!

Re: writing errors = software errors

Anonymous's picture

speeling? What's that.

Besides, for programming, we have the compiler to point out spelling mistakes.

Re: My Visit to SCO

Anonymous's picture

The CEO of SCO is an SOB. The only winner in this copyright/patent dispute is, as usual, Microsoft. Bill Gates and his cohorts are jumping up and down with glee at seeing the rest of the software industry attacking and destroying each other. Consequently, I will be buying Microsoft stock.

Re: My Visit to SCO

Anonymous's picture

Great article; great work. Thank you for your sacrificial efforts in regard to your visit to SCO. Your coverage and comments were tactful, well balanced, insightful, and helpful.

Randy

Re: My Visit to SCO

Anonymous's picture

[SCO] said that until the parties go to court, it doesn't want the Linux community to remove the code in question.

Now that is an interesting. If SCO is making charges that there is Unix code in Linux, why does it not want to help the Linux community identify these violations and have said code removed/replaced in an expedient manner?

This, in and of itself, seems to be a suspect position to take.

General copyright question

Anonymous's picture

If I have a copyrighted file and cuts out a piece of it (without copyright header) and send it to some newsgroup to ask a question about some problem I have with this piece of code, is then that code copyrighted or not?

If it is not, it would mean that every member of that newsgroup could do a cut and paste and have the identical code in their project even though that code was originally copyrighted.

I have no idea if this applies to the current issue but I am curious how the copyright laws works.

Re: My Visit to SCO

Anonymous's picture

Very Intresting article, this does amount to a lot of debate, what happen when the boot is on the other foot for SCO, whate happens if the code originally came from the linux community. Makes you think doe it not. Sco is going bad, uses this example code which it obtained from the linux community, has a large bank balance and thinks lets give IBM a shake up and score some more money..

Intresting thought Eh, bye all from DownUnder

Re: My Visit to SCO

Anonymous's picture

In general, the issue is where the boundary lies between derivative works and independent works. All programs run on Unix use a Unix API; do they therefore become derivative works? Presumably not. However, when writing a program that runs on Unix, I might look at Unix source code if I have access to it; does that make my program a derivative work? It seems, from SCO's comments, that it might claim this is so.

It sounds like the logical conclusion to this argument is that any attempt at compatibility with other software implies derivation. It'll be a scary day for the software industry if that holds up in court...the only way your app can be unencumbered is if you write your own custom OS to run it under, and use your own explicitly incompatible interfaces and file formats. OTOH, maybe I should see if I can find out who first implemented ASCII and buy the implied copyrights to it on the cheap before they catch on...

William Vollrath

Anonymous's picture

You'll have to buy the rights from the numbers "1" and "0", and they can never agree :)

Re: My Visit to SCO

Anonymous's picture

Great article, pretty clarifying in the middle of all those boring 20 A4 texta, if you ask me :)

Your Visit to SCO, the GPL, and FLOSS law/public policy

Anonymous's picture

I have posted a longer reply to the Digital Copyright Canada forum which I hope people will consider reading.

Since SCO has nothing to loose given they were/are likely to go bankrupt anyway, I wonder if they are simply setting themselves up as a sinking-ship legal test case for a number of uncertainties in software law. They are touching on the limits of copyright licenses, what is a derivative work, software patents, trade secrets, damages for making knowledge public, enforceability of clauses of the GPL (given Caldera distributed Linux, who gets damages for their illegal distribution given they now claim proprietary rights against GPL'd code), and so-on.

While SCO/Caldera can no longer be taken seriously as a software company, I do believe we should all be taking the legal and public policy implications of this case very seriously. This case may cause many unanswered questions to get answered, and if we are not proactive they may not be answered in what we would consider a reasonable/logical way.

What I am asking is that people become more active in the legal and policy questions that these cases are bringing forward. Don't underestimate the lack of knowledge that courts and policy makers have about Free Software and all the positive implications of what we are doing! We have something very important we are protecting, and should take every avenue we have available to us to protect it.

Re: My Visit to SCO

Anonymous's picture

Reminds me of a lawsuit many many decades ago in Europe, where a very popular artist painted on the table cloth. The restaurant owner claimed the piece because it was painted on his property, yet the court decided that the artwork as such was property of the artist and that the artist had to pay the restaurant owner only for the table cloth it was painted on (probably cents in comparison to the 1000 of $s which the painting was worth).

Re: My Visit to SCO

Anonymous's picture

It would be very interesting if Linux source-code from Caldera bought by SCO was put into SCO's products. If this would be the case the GPL demands to reveal all the SCO sources which include little pieces or bigger parts of these linux-sources.

Maybe a sue from the open source community would be more justifiable then the other way round.

Re: My Visit to SCO

Anonymous's picture

SCO's NDA sounds like a Labraya [sic] tarpit trap for linux users and developers. As such perhaps we should start viewing it through an anti-trust lens.

IP rights vs. Licencing rights

MichaelIckx's picture

First, many thanks to IanLanceTaylor for taking the trouble to listen at SCO's nonsense and writting this clearifying article to the benefit of the Linux comunity.
Now, let's not miss the central issue as it affects Linux users and vendors anyway. Any US court will be compeled to distinguish between property rights and licencing rights. Even if any component of AIX is indeed derivative work (BTW, a big IF), it would only affect the licencing contract between IBM and ATT (now SCO), and not the fact that the new AIX components indeed belong to IBM. All SCO can try is to get a penalty from IBM for violation of the licencing agreement. As all these new AIX components, whether derivative or not, still belongs entirely to IBM, the Linux-GPL licencing by IBM cannot be revoked, nullified or terminated by SCO. Linux users and vendors may well alege that the code they are using belongs to IBM and is released under GPL by it's owner (IBM). Therefore they are not in violation of any SCO IP, and the licencing issues relating to the original System V is to be dealt out with IBM, not with the Linux users or vendors.
Even as SCO tries to teminate IBM-ATT's original licencing contract, the code written by IBM for AIX still belongs to IBM, not to SCO. Therefore SCO still has no right to ask for fees to Linux vendors or users.
On the other hand, as SCO might expect a penalty from IBM, they might as well expect further IP violation thunderstorms from IBM. It is my speculation that it'll all turn out to be a "get rich quick and leave for good" move by SCO's shareholding management.

IP rights vs. Licencing rights

Anonymous's picture

First, many thanks to IanLanceTaylor for taking the trouble to listen at SCO's nonsense in the benefit of the Linux comunity.
Now, let's not miss the central issue as it affects Linux users and vendors anyway. Any US court will be compeled to distinguish between property rights and licencing rights. Even if any component of AIX is indeed derivative work (BTW, a big IF), it would only affect the licencing contract between IBM and ATT (now SCO), and not the fact that the new AIX components indeed belong to IBM. All SCO can try is to get a penalty from IBM for violation of the licencing agreement. As all these new AIX components, whether derivative or not, still belongs entirely to IBM, the Linux-GPL licencing by IBM cannot be revoked, nullified or terminated by SCO. Linux users and vendors may well alege that the code they are using belongs to IBM and is released under GPL by it's owner (IBM). Therefore they are not in violation of any SCO IP, and the licencing issues relating to the original System V is to be dealt out with IBM, not with the Linux users or vendors.
Even as SCO tries to teminate IBM-ATT's original licencing contract, the code written by IBM for AIX still belongs to IBM, not to SCO. Therefore SCO still has no right to ask for fees to Linux vendors or users.
On the other hand, as SCO might expect a penalty from IBM, they might as well expect further IP violation thunderstorms from IBM. It is my speculation that it'll all turn out to be a "get rich quick and leave for good" move by SCO's shareholding management.

Let me explain "derivative work"

Anonymous's picture

A derivative work is any material created by modifying or incorporating any previous work. FreeBSD 5.1 is a derivative work of FreeBSD 5.0 and FreeBSD 2.0 is a derivative work of one of the BSD releases.

Likewise, the JFS code makes Linux a derivative work of OS/2, for example.

This is all basic copyright law that has been well-understood since the early days of U.S. intellectual properties law. It's not in dispute.

SCO is making a number of claims. Apparently, according to SCO, IBM was contractually required to keep technologies developed for its UNIX-derived works secret. Thus JFS is tainted by the contract, not copyright law. Even rewriting the code from scratch for OS/2 wouldn't solve that problem, but it's not the code that IBM's UNIX license places the restrictions on.

The way I see it, our best-case scenario is that SCO'll turn up a few insignificant cases of copyright infringement in the form of small blocks of code that'll need to be rewritten for Linux. People make slip-ups like that, and Linux developers probably haven't maintained 100% perfection throughout the history of the OS.

The worst case scenario is that SCO will win on the contractual issues and there'll be an injunction against the use of certain IBM inventions outside of UNIX.

Losing directly on the trade secret issues (without losing on the contractual issue) wouldn't be as bad, since IBM would end up paying a financial judgement to SCO, and SCO would lose its trade secrets. Once a trade secret is disclosed, it ceases to exist even if you successfully sue the people that released the information.

Re: Let me explain

Anonymous's picture

Sorry but you are wrong. Your BSD example is correct with regards to derivative works. However, with regards to JFS, since it's not BASED on an existing SVR5 file system, it is an INNOVATION, and not a DERIVATION. The derivation concept does not apply. If JFS 1.0 was present in SVR5 as LogFS, IBM took that code, rewrote and improved it, then JFS would be a derivative of SVR5. Have you looked back at what was in the original AT&T SVR5? There's nothing like JFS, RCU, or NUMA even remotely attempted in there.

Re: My Visit to SCO

Anonymous's picture

There needs to be a bit morelight shed on SCO's financial position. I have heard comments that SCO is financially in the dumpers and heading for bankruptcy when the suit idea surfaced. MS got the idea that SCO was a good proxy warrior against Linux, and popped for the money to let SCO continue. Now, unless SCO prevails and wins a bundle in damages from someone who will actually pay up, it's on to bankruptcy again.

A desperate move by desperate people, supported by a sideline sitter with a most vested interest.

Let IBM just wait it out ...

Anonymous's picture

A lawyer told me once "delay" was a powerful legal weapon. Here's a much more satisfying projection: why not wait SCO out. Theoretically the small corp has the same rights as IBM, but just like an OJ trial - money talks. And buys you time. IBM (and RedHat) could probably delay the proceedings until SCO's cash runs out for much less money than it would cost to buy the company.

Re: Let IBM just wait it out ...

Anonymous's picture

>IBM (and RedHat) could probably delay the proceedings
>until SCO's cash runs out for much less money than
> it would cost to buy the company.

That's right, but _some_ companies can invest some amounts of money in SCO, say, as licensing fees. As they did, in fact. As SCO does not develop anything now, it can fire all its personel, except CEO, PR and lawyers and thus minimize its outcomes. It could take a lOOOOng to wait for SCO's bankruptcy.

Re: My Visit to SCO

Anonymous's picture

Thanks for your efforts and dilligence in reporting.

It would seem to me that a reasonable interpretation of SCO's derivative works policy indicates that all of the code ever written is derivative of that which came before it. Eventually, you would get to the point of INTEL, MOTOROLA, TI, NATIONAL SEMICONDUCTOR, and perhaps a couple of others who own the microcode for their processors and PLAs, having a claim to everything written. It is pretty ludicrous but then, so is SCOs assertion. (If we are accurate in assuming that they are claiming that linking to a API constitutes a derivative work)

If I owned any SCO stock, now would be a great time to divest. The counter suits of which you spoke would seem to be a very likely outcome. I suspect that in five years, there will be only a memory of an entity known as SCO.

s.m. dupree
knoxville, tn

William Vollrath

Anonymous's picture

Take it further. All information processing is thus likely owned by the heirs of Boole

William Vollrath

Anonymous's picture

And any useful thing ever created using a computer is thus jointly owned by the numbers "1" and "0"

Re: My Visit to SCO

Anonymous's picture

The first thing that I feel IBM needs to do is ask The SCO Group, "Prove you own the Unix copyrights".

Novell states they did not transfer Unix copyrights over when the code was bought. Here is an excerpt of Novell's statement:

Importantly, and contrary to SCO's assertions, SCO is not the owner of the UNIX copyrights. Not only would a quick check of U.S. Copyright Office records reveal this fact, but a review of the asset transfer agreement between Novell and SCO confirms it. To Novell's knowledge, the 1995 agreement governing SCO's purchase of UNIX from Novell does not convey to SCO the associated copyrights. We believe it unlikely that SCO can demonstrate that it has any ownership interest whatsoever in those copyrights. Apparently, you share this view, since over the last few months you have repeatedly asked Novell to transfer the copyrights to SCO, requests that Novell has rejected. Finally, we find it telling that SCO failed to assert a claim for copyright or patent infringement against IBM.

The detailed article can be found here, on Novell's site:

http://www.novell.com/news/press/archive/2003/05/pr03033.html

Re: My Visit to SCO

Anonymous's picture

The first thing that I feel IBM needs to do is ask The SCO Group, "Prove you own the Unix copyrights".

Novell states they did not transfer Unix copyrights over when the code was bought. Here is an excerpt of Novell's statement:

Importantly, and contrary to SCO's assertions, SCO is not the owner of the UNIX copyrights. Not only would a quick check of U.S. Copyright Office records reveal this fact, but a review of the asset transfer agreement between Novell and SCO confirms it. To Novell's knowledge, the 1995 agreement governing SCO's purchase of UNIX from Novell does not convey to SCO the associated copyrights. We believe it unlikely that SCO can demonstrate that it has any ownership interest whatsoever in those copyrights. Apparently, you share this view, since over the last few months you have repeatedly asked Novell to transfer the copyrights to SCO, requests that Novell has rejected. Finally, we find it telling that SCO failed to assert a claim for copyright or patent infringement against IBM.

The detailed article can be found here, on Novell's site:

http://www.novell.com/news/press/archive/2003/05/pr03033.html

Re: My Visit to SCO

Anonymous's picture

Is it possible that they are trying to force a legal
judgement on "derivative works" in order to set
a precedent for a future assault on the GPL? Ok,
putting on my little foil conspiracy beanie... Could
they (with MSoft backing) be setting themselves
up to fail in the derivative works argument?

Cary

Re: My Visit to SCO

Anonymous's picture

Thanks so much for the essay. I must say, though I would freely contribute to the Free Software Foundation and the Electronic Frontier Foundation, Amnesty International is right out.

>

Re: My Visit to SCO

Anonymous's picture

Their concept of owning of a derivitive work has nothing to do either with the GPL and/or copyleft, or even with copyright law. What they are saying, taken to it's logical conclusion, is that a wholy original and seperately produced work (such as SGI Numa or IBM JFS), once it is compiled and used with Unix, even if originally developed elsewhere or for other operating systems first, suddenly, the original authors or companies loose all rights to that said work. Such a notion is clearly perposterous.

Re: My Visit to SCO

Anonymous's picture

WIth the licensing of many analysis tools on the proprietary market (IBM, MATCAD, MS, etc.) costing millions, corporatations are looking more and more frequently to open source software (GPL) to create the tools they need for development. Look at Boeing, Raytheon, and Lockheed....how many of their in-development research projects are being worked with Linux and GPL tools? Gobbs more than the rest of you will ever know as most of the projects have military applications and are thusly classified. Screw SCO! The have a substandard product, and are just blatantly attempting to mug the corporate Linux users. This is exactly the same crap that mobsters did to America in the '30s and it took the judicial branch of the government 70+ years to un-***** the situation.

derived from Linux ???

Anonymous's picture

Great your statement ...

" In general, the issue is where the boundary lies between derivative works and independent works. All programs run on Unix use a Unix API; do they therefore become derivative works? Presumably not. However, when writing a program that runs on Unix, I might look at Unix source code if I have access to it; does that make my program a derivative work? It seems, from SCO's comments, that it might claim this is so."

So in other words their trying to make Linux programs running under UNIX, they consider UNIX to be a derivative work of Linux ? How else could they have accomplished this task w/o looking at the kernel sources ?

Linux vendor consortium should buy SCO

Anonymous's picture

I'd suggest that, rather than having a single vendor or Linux user charity buy up SCO, the best way forwards would be for all the major Linux vendors/supporters to club together to buy up SCO, with contributions weighted by sales. A charity won't get enough subscribers, and any single vendor would be put at a severe disadvantage.

Of course this does have the downside of handing a large amount of money to some parasites, but hey, thats the commercial world. Always has been (look up the James Watt crankshaft patent in Google) and probably always will be, although the law can be changed to reduce it.

Paul.

Re: My Visit to SCO

Anonymous's picture

sco doesn't have *any* jurical role in this masquerade

the linux kernel is the very same kernel they shipped with caldera, which means their acceptance for whatever was in that kernel, to be made public, implicitly voiding whatever they claim today, retroactive

there is no court in the country to encourage completely un-fonded claims and to spend more than a half an hour with this abomination...

those guys should start thinking on their resumees... :-)

ps
thx 4 the details...

this is not true

Anonymous's picture

AFAIK

they have one of the best lawyers. Please consider that they recon

you can not contribute your code to GPL if you are not aware of it. This is part of the GPL.

So all they have to say/prove is that they did not know what they were selling. We have to find out how we can prove the opposite.

Please before making every one in the Linux comunity think it is as easy as this read the GPL or say that this is your oppinion.

Do not under estimate your enemy, they are not stupid, they are graving all our money and to rule the UNIX world.

Re: this is not true

Anonymous's picture

you can not contribute your code to GPL if you are not aware of it. This is part of the GPL.

Where exactly does it say this, and what is the wording? I've read through the whole GPL, (I skimmed some parts, I admit...but only sections which I didn't think would have this in it.) and I can't seem to find it.

So all they have to say/prove is that they did not know what they were selling.

So basically, they have to say they were stupid, and deserve compensation for that fact. I don't know of many CEO's that would admit they were stupid.

Re: this is not true

Anonymous's picture

>> I don't know of many CEO's that would admit they were stupid.

I bet you could find a few who would admit to being stupid for a $3B windfall to a $130M company. Even I would, if it weren't for the ethics. I think it's clear that ethical considerations aren't real high on SCO's list.

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