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Recently Caldera Systems got a new name (The SCO Group (TSG) - quite distinct from the Santa Cruz Operation (SCO) of yore, who still exist as Tarantella) and a new CEO (Darl McBride) and a new way of doing business (barratry1/extortion2) to replace their old way of doing business (selling software). The method itself is not new, nor does it appear to be new to their parent company, The Canopy Group.
TSG, by way of announcing this new business methodology, sued IBM for a billion US dollars, then upped the ante to three billion and finally(?) to five billion US dollars. Raising the bid seems to be what they do when all of the other news is bad for them. They also sent out letters to 1500 Linux™-using corporations advising them to reach for their lawyers, and told Linux™ users in general (and potentially every computer user in the world) that they were all liable for copyright violations but wouldn’t identify the Linux™ code in question. It turns out that TSG don’t own any meaningful copyrights or patents on UNIX, and that the closest thing available had not been transferred to them (so was still, technically, owned by Novell).
Undeterred, TSG showed – under a dangerous NDA (Non Disclosure Agreement) – selected people some very nebulous “evidence” of similarities between code they claim to own, and code in the Linux™ 2.4 kernel, then demanded a USD$699-per-CPU server licence for using “SCO IP in Linux™”. Red Hat sued TSG, IBM counter-sued TSG, time passed. The text of their key material became available without an NDA, and as it happens TSG has no title to that code either.
Further hints that this is a shadow-play farce inspired by the people who have most to lose from Linux™'s success include a $6M-plus donation from Microsoft labelled “licence fees” and the appointment of Melinda Gates to the board of a company which has been heavily supporting SCOX stock.
As at now (mid March 2004), TSG have not demonstrated that they own title to any infringing code at all and their former key examples have gone down in flames. Small wonder that Linus Torvalds, creator of Linux™, spoke of them as “playing it like the Raelians” and later as “smoking Crack”. Many other commentators have compared TSG's announcments to those of “Baghdad Bob” the possibly-late lamented Iraqi Minister of Information.
On 08 February 2004, The SCO Group formally announced to the court that “in response to the Court’s Order, SCO abandons any claim that IBM misappropriated its trade secrets, concedes that SCO has no evidence that IBM improperly disclosed any UNIX System V code, and acknowledges that SCO's contract case is grounded [as in, unable to fly?] solely on the proposition that IBM improperly disclosed portions of IBM’s own AIX or Dynix products, which SCO claims to be derivatives of UNIX System V”.
That sounds simple: “we have no case but that IBM stole our code”. However, as usual, the harder you look, the worse it gets.
Darl MacBride, CEO of The SCO Group, stated in public at Harvard that “There is roughly a million lines of code that tie into contributions that IBM has made and that's subject to litigation that is going on. We have basically supplied that. In fact, that is going to be the subject of a hearing that comes up this Friday [...]” In the actual hearing, “SCO refuses to disclose from what lines of UNIX System V code these alleged contributions are supposed to derive” and “SCO has identified no more than approximately 3,700 lines of code in 17 AIX or Dynix files that IBM is alleged improperly to have contributed to Linux™” out of thousands of files and millions of lines and “SCO also fails properly to identify [...] whether, when, to whom, and under what circumstances and terms it ever distributed those materials [itself].”
In short, most of the charges have been dropped including every claim which might directly impact a Linux™ user, and The SCO Group have failed, despite specific orders to so do, to produce any evidence in support of the remaining claim against IBM. And no less than Novell are seriously contesting TSG's right to enforce any claims on "Unix" that they might have in the first place, so even if TSG had real evidence of wrongdoing (which they evidently don’t) it would do them no good. They have since been roundly counter-sued and may be ordered to pay enormous amounts of back-royalties, and to escrow enough funds to compensate Novell for their abuse of their rights-to-distribute.
It seems that even the greed-blinded hordes of investors are noticing, because their stock fell again recently and is still sagging as I write. Would anyone like a handy roll of stock certificates?
Here’s my theory
Some of my customers are demanding to know whether they have to pay SCO ANZ anything, and SCO ANZ can't tell them or me what exactly they “must” pay for a licence to. This represents a restraint of trade, since some of these customers are or were deferring or cancelling Linux™ related orders based on the uncertainty of their situation, and I’m afraid CyberKnights will soon take SCO ANZ to court to remove this restraint – and perhaps obtain some compensation for the unreasonable time that SCO ANZ has been thus restraining our trade.
Poor long-suffering Kieran O’Shaugnessy (SCO ANZ’s manager) has finally been given a figure to pass on: the single-CPU SCO-IP-in-Linux™ server licence has been set at AUD$999. CyberKnights have strongly protested the threat of licence fees and subsequent legal action when we refuse to pay them and begun to follow that through3. SCO will now have to show that they have a real product to sell, else they will almost certainly be facing fraud charges from the ACCC, DPP and possibly others in addition to direct action by CyberKnights.
The immediate consequences for you as a Linux™ user are nothing. In the worst case, even if TSG were somehow able to win their case without evidence or reason against IBM’s bulging legal muscle, they can only possibly hold distributors to ransom, not end users. They may subsequently set about drumming up an enforceable "licence" fee for Linux™ users, but even then any court would grant “reasonable time” to comply, and during that time answers will be found. For example, a “successful” court hearing would require TSG to uneqivocally identify the code they wish to claim lien on, at which point it would be swiftly removed from Linux™ and replaced with code written de novo. Coincidentally, some of “their” code (it’s not) in Linux™ was already condemned and replaced for being “too ugly to live” before it was singled out.
The immediate consequences for you if you use SCO UnixWare or SCO OpenServer are that many technicians, in protest against TSG’s actions, are now refusing to deal with any of their software. This will make it harder and probably more expensive for you to find people to maintain it. In the longer term, it seems likely that TSG will lose their suit, IBM will win their counterclaim, and The SCO Group will cease meaningful commercial operation. At that point your software would become orphaned, and your options at would then be determined by what happened to the source code they were using at the time.
The three most likely options are: (1) it vanishes, and you will eventually need to migrate to a different operating system; or (2) it is sold to someone else who then milks it for all it's worth, and your software costs will head for orbit; or (3) it is opened, which is the ideal outcome for you since you will then be able to run an OSS system, and compatibility layers for Linux™ and the free BSDs will inevitably arise. It’s worth noting that the latest UnixWare includes device drivers taken without acknowledgement from SuSE Enterprise Linux™ 8, so TSG may soon have a copyright suit on its hands as well.
If you deal with share traders at all, point out to them that TSG (SCOX) will inevitably lose their case, that IBM’s countersuit would turn them into a fading memory even if a miracle occurred and TSG won their main case, and that like BRE-X before them they will crash suddenly when the public wakes up to the real state of their affairs.
Replace any software owned, sold or operated by TSG wherever you are able. Recommend against TSG software unless that recommendation supports Microsoft, who appear to be bankrolling TSG's crusade. Much software currently tied to OpenServer or UnixWare will run unmodified, without recompilation, using the Linux™-ABI personality modules. You can even run most OS/UW code under ABI in a Linux™ emulator on FreeBSD or Solaris. If you have the source for any key applications, try recompiling them on Linux™ – you may want to change some directory names to improve the fit but you will no longer be dependent on an emulator.
If you release any software under the GPL, consider a specific exclusion of rights along these lines:
/* * Name Of Program * Copyright (c) 2021 Your Name Here <firstname.lastname@example.org> * * May be distributed only under the terms of the GNU General Public * Licence (GPL, see http://www.gnu.org/licenses/gpl.html for details). * * Take notice that since The SCO Group has incorporated GPLed works * without attribution into their UnixWare product, and since they * have publicly denied the "validity or enforceability" of the GPL * while continuing to ship products such as SaMBa which are only * distributable under the GPL, they have waived their right to use * and distribute under the GPL through violating the conditions set * forth in section 4: * * You may not copy, modify, sublicense, or distribute the * Program except as expressly provided under this License. * Any attempt otherwise to copy, modify, sublicense or * distribute the Program is void, and will automatically * terminate your rights under this License. * * Since they have denied the "viability or enforceability" of the GPL * The SCO Group are no longer able to legally use or distribute software * under the GPL, as per section 5: * * 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 or its * derivative works. These actions are prohibited by law * if you do not accept this License. * * Therefore, use or distribution of this or any other GPLed software * by The SCO Group or any of the individuals within it who have acted * in disregard of the GPL covering the software employed or distributed * by The SCO Group or themselves is illegal under current national and * international copyright law. * * See http://sco.com/ibmlawsuit/AnswerAmendCC.10-24-03.pdf, 10th page * for an example of a public denial of the "validity or * enforceability" of the GPL. */
Here is a link-farm roughly in chronological order, which will be added to and updated from time to time:
Updates in near-real-time are available from the hardworking and insightful Pamela Jones at GrokLaw, complete with paralegal opinion.
1 Webster's: “The practice of exciting and encouraging lawsuits and quarrels.” and “A fraudulent breach of duty or willful act of known illegality on the part of a master of a ship, in his character of master, or of the mariners, to the injury of the owner of the ship or cargo, and without his consent.”
2 Webster's: “the act or practice of wresting anything from a person by force, by threats, or by any undue exercise of power”.
3 All of these email messages were accepted by TSG's email servers within seconds.
How many other cases exist where [company] has included third party technology in it products, but has also taken the cheaper licensing option and left developers and even users exposed to the threat of lawsuit? Due to the closed nature of the proprietary business model, how can third party developers even check? — NZheretic on LWN
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