SCO Claims 2002 UNIX Source Release Was "Non-Commercial"

SCO offers a novel interpretation of its 2002 open-source letter.

Blake Stowell, Director of Public Relations for The SCO Group, said this week that SCO's 2002 letter that released old UNIX versions did not offer free, open-source terms but included a non-commercial use restriction. The company then was called Caldera.

"I do not dispute that this letter was distributed and that Caldera at the time allowed 16-bit, non-UNIX System V code to be contributed to Linux for non-commercial use", Stowell wrote in an e-mail interview.

The text of the letter, sent January 23, 2002 by Bill Broderick, Director of Licensing Services for Caldera, in fact makes no mention of "non-commercial use" restrictions, does not include the words "non-commercial use" anywhere and specifically mentions "32-bit 32V Unix" as well as the 16-bit versions.

When asked for clarification on the "non-commercial" assertion, Stowell replied by e-mail, "That is what I was told by Chris Sontag." Sontag is SCO's Senior Vice President and General Manager of the SCOsource division and is responsible for controversial license demands from Linux users based on SCO's claim that Linux contains code illegally copied from SCO.

SCO CEO Darl McBride included examples of allegedly infringing code in a presentation at this week's SCO Forum and promptly triggered a flurry of UNIX and Linux research on such sites as Linux Weekly News, as users attempt to trace the code's origin.

UNIX developer and author Eric Raymond, who formerly maintained an exhaustive buyers' guide covering proprietary UNIX versions for x86 PCs and writes that he has access to both open-source and proprietary UNIX source code, has traced the code McBride presented specifically to the 32V version of UNIX, which is covered by the Broderick letter.

Don Marti is Editor in Chief of Linux Journal.

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Re: SCO Claims 2002 UNIX Source Release Was

Anonymous's picture

I am a GPL supporter, but I can't help but notice an oversight in the logic here. I see no mention of the requirement for the Linux Kernel code to include the Caldera copyright notice, as required by the Caldera release letter, which the Linux code seems to be missing. I believe that is how AT&T lost their case.

Re: SCO Claims 2002 UNIX Source Release Was

Anonymous's picture

The announcement says

with specific exclusion of UNIX System III and UNIX System V and successor operating systems:
32-bit 32V UNIX
16 bit UNIX Versions 1, 2, 3, 4, 5, 6, 7

Sorry to rain on your parade but this appears to mean that 32V is not opened under this letter.

Re: SCO Claims 2002 UNIX Source Release Was

Anonymous's picture

You missed the keyword "following" whose list, after some clarification, began after the colon.

Re: SCO Claims 2002 UNIX Source Release Was

Anonymous's picture

Read it again. It says UNIX System III and UNIX System V are excluded. 32V UNIX is listed as an included system.

Re: SCO Claims 2002 UNIX Source Release Was

Anonymous's picture

First, the courts already found the contributions of other parties to what is now UnixWare to be so great, and Novell's proprietary entitlement in the code so small, it is not likely that SCO can even legally claim rights to UnixWare or AIX. You simply can't have tons of others' code (eg. BSD and Linux perhaps) in your Operating System and then turn around and make a claim that you own everything. AT&T/USL/Novell have tried and failed when they sued UC Berkeley about 10 years ago. They couldn't legally claim copyright infringements over BSD then, and you will not be able to make the same claim against Linux now. To prove SCO's right to relief, SCO must show that whatever code IBM gave to the open-source community was neither legally obtained by both IBM and old SCO from a common source nor independently developed.

Second, SCO/Caldera is barred by the terms of the GNU General Public License from making copyright or patent-infringement claims on any technology shipped in conjunction with the Linux kernel that SCO/Caldera itself has been selling for the last eight years. Therefore, SCO/Caldera may accuse IBM of misappropriating SCO-owned software to improve the Linux kernel only if that software does not actually ship with the Linux kernel it is alleged to be improving! When you profit from packaging, incorporating, modifying, using, distributing, or selling the public's GPLed software (Linux), you can't turn around and extort others for money by making copyright or patent infringement claims on the use of the very same GPLed software (Linux) you have been utilizing and benefiting from.

Third, SCO/Caldera is barred from making trade-secret claims on the contents of the Linux kernel, not merely by the fact that the kernel source is generally available, but by the fact that SCO/Caldera has made the sources of its Linux kernel available for download from SCO's own website!

Please see: http://www.opensource.org/sco-vs-ibm.html for more info.

That's it

Anonymous's picture

I used Openlinux Workstation 3.1.1. Now Caldera caused trouble in Linux community, I uninstall it and replaced it with Red Hat 9. It is a way to boycott Caldera product.

Re: SCO Claims 2002 UNIX Source Release Was

Anonymous's picture

For Blake Stowell saying "That is what I was told by Chris Sontag." is like him say "That's what my mom told me."

Re: SCO Claims 2002 UNIX Source Release Was

Anonymous's picture

What I really don't understand is, why don't they keep their mouths shut when asked about something they can't answer in their favor? Instead, they make themselves look incredibly stupid for taking with such moronic responses to the press.

Gosh I hate these morons!

Re: SCO Claims 2002 UNIX Source Release Was

Anonymous's picture

You may hate them for flapping their gums, but they are giving us the rope needed to hang them!

Re: SCO Claims 2002 UNIX Source Release Was

Anonymous's picture

These glue-heads keep acting arrogant despite more and more pieces of hard evidence are revealed. Do they have no shame?

Re: SCO Claims 2002 UNIX Source Release Was

Anonymous's picture

The letter says that the released code can only be used with the enclosed licensing conditions and disclaimer. Without that text included, the use, copying or modification is not permitted. Use without meeting those conditions is a copyright infringement. SGI's use was improper and anyone using SGI's released code is also an infringer. The innocent user of that code may have a defense to damages before they were aware of the true source. Once the true source is know and the conditions of its license, they have a duty to stop using the code or follow the license and return the proper license language to the source code. ALL copies that exist in the Linux distributions that don't have the SCO license language are in violation of SCO/Caldera's copyright. The letter does not create a public domain of the source code. Having to do an extensive search of newsgroup postings, out of print treatises, or old distribution files is not how notice of copyright ownership is done. The notice is supposed to be contained with the source code. The need for the search is evidence that the license was violated, and not proof that it wasn't violated.

The SCO Group have been stripping BSD headers...

Anonymous's picture

...so what chance does a researcher have of spotting a copyright notice after it's been removed?

Re: The SCO Group have been stripping BSD headers...

Anonymous's picture

So we agree copyright notices shouldn't be stripped. In fact is could constitute a crime if it was intentional and was done to allow the pirating of the software. AT&T and Univ. of Berkeley reached a settlement on BSD that was sealed, so I don't know if SCO acquired a cross licensing agreement with their purchase of Unix code and copyrights.

Re: SCO Claims 2002 UNIX Source Release Was

warmfuzzygrrl's picture

Use without meeting those conditions is a copyright infringement. SGI's use was improper and anyone using SGI's released code is also an infringer.

That is true, assuming that SGI was using the source code under the license agreement that accompanied the 2002 source release -- a fact which is not, so far as I know, documented one way or the other in a public forum at this point.

The 2002 letter applies to people who want to use the code who don't already have some prior license agreement to use it, or whose prior license agreement is more restrictive than the terms of the 2002 letter. Presumably, someone with a broader license could (and would) claim the terms of their individual license rather than the terms of the 2002 letter. So your argument is rather beside the point.

The question presently at issue is, did the 2002 letter contain restrictions that permitted use of the code only for non-commercial purposes? The answer is no. There is nowhere in the 2002 letter that the phrase "non-commercial" appears.

On a slightly different note, one thing I wonder about -- did any of the printed treatises etc. over the years that included this code include the text of the comments? If so, it becomes a lot harder to prove that the code in the Linux kernel indeed came from SCO, and not from one of the myriad random UNIX textbooks out there that included pieces of source code.

Re: SCO Claims 2002 UNIX Source Release Was

Anonymous's picture

The 2002 letter was a license for new users. Those with prior licenses probably didn't need the new license, but presumely they had fee licenses. Fee licenses are usually exclusive and can't be sub-licensed. The letter does say "no fee license" which may be a term of art and refer to the condition that the license doesn't allow the licensees to charge a fee for the code either, hence non-commercial use.

As for portions of SCO code being in Unix textbooks, there is a fair use exception for scholarly works that allows for making copies for critique or analysis of a copyrighted work. That does not allow the general public to copy or use code printed in the book for some other purpose. Copying published works without a license or fair use exception is also a copyright infringement. SCO code in a textbook isn't public domain, the copyright is still valid. Whether the copying of the code and comments into Linux came directly from an SCO source or through a legal fair use textbook, the copying still violates SCO's copyright. The author of the textbook may also have a claim if some of his derivative code was copies for a non-educational purpose.

Re: SCO Claims 2002 UNIX Source Release Was

Anonymous's picture

First, the courts already found the contributions of other parties to what is now UnixWare to be so great, and Novell's proprietary entitlement in the code so small, it is not likely that SCO can even legally claim rights to UnixWare or AIX. You simply can't have tons of others' code (eg. BSD and Linux perhaps) in your Operating System and then turn around and make a claim that you own everything. AT&T/USL/Novell have tried and failed when they sued UC Berkeley about 10 years ago. They couldn't legally claim copyright infringements over BSD then, and you will not be able to make the same claim against Linux now. To prove SCO's right to relief, SCO must show that whatever code IBM gave to the open-source community was neither legally obtained by both IBM and old SCO from a common source nor independently developed.

Second, SCO/Caldera is barred by the terms of the GNU General Public License from making copyright or patent-infringement claims on any technology shipped in conjunction with the Linux kernel that SCO/Caldera itself has been selling for the last eight years. Therefore, SCO/Caldera may accuse IBM of misappropriating SCO-owned software to improve the Linux kernel only if that software does not actually ship with the Linux kernel it is alleged to be improving! When you profit from packaging, incorporating, modifying, using, distributing, or selling the public's GPLed software (Linux), you can't turn around and extort others for money by making copyright or patent infringement claims on the use of the very same GPLed software (Linux) you have been utilizing and benefiting from.

Third, SCO/Caldera is barred from making trade-secret claims on the contents of the Linux kernel, not merely by the fact that the kernel source is generally available, but by the fact that SCO/Caldera has made the sources of its Linux kernel available for download from SCO's own website!

Please see: http://www.opensource.org/sco-vs-ibm.html for more info.

Re: SCO Claims 2002 UNIX Source Release Was

Anonymous's picture

"The letter does say "no fee license" which may be a term of art and refer to the condition that the license doesn't allow the licensees to charge a fee for the code either, hence non-commercial use."

Spoken like a true lawyer. The overall theme of the letter gets overshadowed by an interpretation of 'what might have been meant' instead of reading the facts, which are printed in black and white:

"Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met..."

...and the letter continues to state that the copyright notices must be included with source or binary forms of the software, but never limits redistribution...

"All advertising matierials mentioning features or use of this software must display the following acknowledgement...."

...hmmm, I guess this only includes 'non-commercial' advertising? (Please note my sarcasm.)

MWT - Greenville, NC.

Re: SCO Claims 2002 UNIX Source Release Was

Anonymous's picture

"On a slightly different note, one thing I wonder about -- did any of the printed treatises etc. over the years that included this code include the text of the comments?"

In fact, the entire code including comments has been published in TWO books. Both were sanctioned by the UNIX copyright owners of the time. From what I have read (but not verified) one of the books had no restrictions on reuse of the code.

Furthermore, the code appeared in an old BSD distribution (pre AT&T lawsuit, but still).

Moreover, the code appeared ONLY in the IA64 branch of the code. The idea that everyone who uses Linux infringed on the copyright is laughable.

The code was for a malloc() implementation. Linus already dropped it long ago because it was "ugly" (presumably ugly to have a separate malloc for a separate CPU architecture).

Re: SCO Claims 2002 UNIX Source Release Was

Anonymous's picture

If the published books had copyrights dates of no less than 50 to 70 years ago in the front of them, then they are copyright protected. You can't copy anything in the books without permission, or a fair use exception. The publisher probably did legally copy Unix code by license or fair use, but that doesn't give the reader the same rights. Copying stuff out of books to distribute to others is generally not a fair use, and constitutes copyright infringement. If you want to keep Linux out legal trouble in the future, never copy any published code that you don't own or have the author's permission and distribute it with a GPL attached. That is exactly what SCO would need to win this case.

Re: SCO Claims 2002 UNIX Source Release Was

Anonymous's picture

Liberal license for ancient UNIX sources

Can they argue that "liberal" means non-commercial ?

Re: SCO Claims 2002 UNIX Source Release Was

Anonymous's picture

I suspect in this case they are using the word liberal in the pejorative sense meaning "not conforming to the traditional rules". Here it means "we offer it, provide unrestricted access to it and then threaten to sue you for actually using it". You know those damned liberals can't be trusted not to give away the store! They usually don't want it back though. (o;)

Re: SCO Claims 2002 UNIX Source Release Was

Anonymous's picture

Caldera called it a "BSD-style" license:
http://www.lemis.com/~grog/UNIX/

Re: SCO Claims 2002 UNIX Source Release Was

Anonymous's picture

This may be the beginnings of finger-pointing for the internal round of blame for the "Let's just sue everybody" debacle.

Re: SCO Claims 2002 UNIX Source Release Was

Anonymous's picture

Given that Blake Stowell, Chris Sontag, and Darl McBride are now certainly aware of the contents of the letter that accompanied the release of the code, are they not engaging in fraud now by claiming ignorance? What point is there in falsely claiming that the code was released only for 16 bit and only for non commercial use when they know otherwise, other than to fool would be investors into thinking they have a case against IBM and Linux in general?

Just what does it take to constitute fraud at this point?

Re: SCO Claims 2002 UNIX Source Release Was

TomFrayne's picture

I think they have already commited fraud, among other crimes.

"When asked for clarification on the "non-commercial" assertion, Stowell replied by e-mail, "That is what I was told by Chris Sontag." Sontag is SCO's Senior Vice President and General Manager of the SCOsource division and is responsible for controversial license demands from Linux users based on SCO's claim that Linux contains code illegally copied from SCO."

This is part of the FUD that SCO is spewing out on the claim that the BSD code is not legally in Linux. In fact, this FUD has been definitively demolished.
The advertizing clause that SCO has complained was illegally removed can be legally removed by ANYONE, who can legally copyright the result, and can legally distribute programs containing it, with any desired license, including the GPL, according to the BSD license.

For more details, read my thread "Demolishing SCO's FUD" on comp.os.linux.advocacy.

I would have sent this earlier, but, for the last hour, I have been waiting for my email reader to finish processing the 4568 email messages that came in this morning. I had to wait because the password to Linux Journal that I needed before sending this message was somewhere in the messages. I have never had more than a few hundred messages come in one day, before this.

Re: SCO Claims 2002 UNIX Source Release Was

TomFrayne's picture

I spoke far too soon, and was wrong. I finally read the BSD license, and found that the BSD license allows only the owner to remove the advertizing clause or to copyright a derived work.

I apologize to Mr. Stowell and Mr. Sontag for calling their statements on this matter FUD without sufficiently investigating the matter myself.

Re: SCO Claims 2002 UNIX Source Release Was

Anonymous's picture

Just what does it take to constitute fraud at this point?

How about an administration that actually cares about justice, rather than lining their own pockets? Ashcroft/Bush let Microsoft off the hook and now it seems they are prepared to ignore the blatantly illegal actions of SCO.

Re: SCO Claims 2002 UNIX Source Release Was

Anonymous's picture

How about an administration that actually cares about justice, rather than lining their own pockets? Ashcroft/Bush let Microsoft off the hook and now it seems they are prepared to ignore the blatantly illegal actions of SCO.

Microsoft was nothing.

What about Ken Lay?

Oh, I forgot. He slept in the Lincoln bedroom under Clinton in exchange for a massive campaign contribution, and he was George W. Bush's largest contributor to his gubernatorial campagin.

It's not just this administration, it's all of them.

The last two presidents in office got there with stolen money from Enron. Hear the giant sucking sound? That's America being flushed down the toilet.

Re: SCO Claims 2002 UNIX Source Release Was

Anonymous's picture

They are probably confusing the 2000 license that was educational use only http://public.www.planetmirror.com/pub/ancient-unix/ and the 2002 one which was BSD like http://www.tuhs.org/Archive/Caldera-license.pdf

In this (http://cm.bell-labs.com/cm/cs/who/dmr/bsdi/bsdisuit.htm) ruling the Judge stated that she was inclined to find that the 32V code was public domain as it did not bear the copyright attribution that was required for distribution before 1988. The same ruling could be applied to any of the other early Unix releases.

Re: SCO Claims 2002 UNIX Source Release Was

Anonymous's picture

They are probably confusing the 2000 license that was educational use only http://public.www.planetmirror.com/pub/ancient-unix/ and the 2002 one which was BSD like http://www.tuhs.org/Archive/Caldera-license.pdf

Nope! From their earlier license:

3. LICENSED SOURCE CODE PRODUCTS

The SOURCE CODE PRODUCTS to which SCO grants rights under this AGREEMENT are restricted to the following UNIX Operating Systems, including SUCCESSOR OPERATING SYSTEMs, that operate on the 16-Bit PDP-11 CPU and early versions of the 32-Bit UNIX Operating System with specific exclusion of UNIX System V and successor operating systems:

Maybe that are picking out bits and pieces from different contracts though.

My point is that they are intentionally and willfully deceiving potential investors.

Re: SCO Claims 2002 UNIX Source Release Was

Anonymous's picture

From the letter:

"All advertising materials mentioning features or use of this software..."

Now, look me in the eye and tell me it's non-commercial.

Re: SCO Claims 2002 UNIX Source Release Was

Anonymous's picture

what a great way to "scare" up some capital. wish I thought of it. Seems like they are just trying to get as many people as possible to pay up before the courts make them prove their case. Whats wrong with this picture....hey thats my orange ball. well, its not really my ball. it just looks like mine. here sign this and i'll show you some pictures. now is this mine or yours? give me the "orange" ball.

Re: SCO Claims 2002 UNIX Source Release Was

Anonymous's picture

I gotta go buy that new book, "Lies and the Lying Liars Who Tell Them," so I can understand what is going on here.

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