The SCO/Caldera v IBM Case: What do Linux-using ILxor Members Think About It?

2) Beats me.

Am I allowed to say, "well, they *did* get given a huge wodge of cash by Microsoft just around the same time as they announced they were suing IBM," or is that too conspiracy-theory-ish?

when the story first broke that sco were trying to sue ibm for $100M the next issue of linux format had this on the cover:

http://www.linuxformat.co.uk/images/covers/LXF40.cover.jpg

which i thought was funny (it's doctor evil if the image doesn't come out)

pretty much sums up my opinion of sco and their claims.

andy

Me, for one.

i like the fact i can cobble together code and video and music and stuff without having to steal (or buy!) the software to do it. and i have a command line 8)

(as an aside: spent an hour this afternoon using a nailed down version of nt4 workstation running ie4 (yep, four) and was getting popups and syntax errors on every other page i visited. was horrible.)

andy

andy

Speaking of press: Darl loved to start his press conferences by slapping down two thick binders pull of press clippings and say "this shows how relevant we are to tech sector."
What he didn't reveal is that the binders contain one vague news item parroting SCO FUD, and 30,000 in-depth dissections of the question: "WTF is SCO's problem, and what nasty thing is IBM/FTC/SEC going to do to them?"

For me, the fun case is the RedHat declaratory judgment action, which ought to be a massacre.

Hey Andy, what's the linux for RealPlayer? I downloaded the credits to K9 and Co but sadly cannot see them (also chiz I have now borrowed the video but this way I have that dry stone wall on tap hoho).

I downloaded some debian package but I can't get it to work, it doesn't seem to want to make itself executable or "compile the binary" whatever on earth that may mean.

As for realplayer I do have a package, it's just that the beast doesn't appear to want to do anything with it. I've got the binary for debian but still... and Paul Eater who has nicely tutored me through a few linux things can confirm that trying to install Pine on the beast is being the annoyingest thing *ever*. It gets halfway through the install and then sez it has problems building a c-client and this is AFTER I had to download a "make" something or other. ODD.

Try downloading OpenOffice for word processing stuff. It works very well for me.

um, realplayer files are undersupported in linux due to their proprietary format - means that if realmedia don't write software to play their files then nobody does. they are currently pushing their helix dna media server software though, the platform part of which they have open-sourced (and supply the actual rm 8 and rm 9 codecs as binaries that'll plug right in). have no idea how this is going though because i've never needed to play realvideo files.

mplayer, the biggest of all the linux media players, does seem to have some support for realmedia (using aforementioned binary libraries) but i couldn't find a debian packaged version (haven't looked online though, only on the various coverdisks that come with linux format every month) and compiling mplayer is a bit of an undertaking.

what i do have, however, is a thing called movix (movix2 to be precise) which is a bootable linux distribution that you just pop in your cd drive and reboot (it doesn't install itself to any of your hard disks so it won't destroy your debian installation). this does nothing except play videos, using mplayer, and comes realmedia enabled as standard (all the files are there and it's mentioned in the docs but i haven't been able to test this). will bring a copy with me (and openoffice and mozilla as well, hope the beast is up to it) to saturday's fap and wednesday's FT night. in exchange i will probe you for tips on jak and daxter 8)

main real site:
http://www.realnetworks.commain real site

linux version is hidden away under various forms here: http://forms.real.com/real/player/unix/unix.html

andy

have now found mplayer packaged for debian:
http://www.clockbot.net/HowTo/JLavin/MPlayer/Debian/

will bring that with me too.

andy

Well, any judge with half a brane is going to order that discovery be sealed, simply because SCO's going to argue that everything Red Hat wants to see is protected by the law of trade secrets. So I don't think that's what the Red Hat case is really about. I think the Red Hat case is basically a way to cut the SCO/IBM case off at the knees -- there will be a round of limited discovery, and then the court will rule on it's declaratory judgment petition, and (I'm sure) sustain the petition. Once that happens, everybody will realize that SCO's been talking shit throughout this thing.

As I say, I'm not entirely sure whether that clears up the IBM problem, since the contracts b/w SCO and IBM may restrain IBM from doing perfectly logical and legal things. But at least it clears the cloud away from the linux kernel for end-users.

Make that five - i just bought a cheap athlon box, and I installed SuSE professional 8.2 in it. I'm a new user as well (migrated over from windows fwiw)

Darl's Letter:
http://newsforge.com/newsforge/03/09/09/1327245.shtml?tid=17
Responses:
http://www.computerworld.com/softwaretopics/os/linux/story/0%2C10801%2C84729%2C00.html?SKC=home84729 Computerworld
http://newsforge.com/newsforge/03/09/09/2355214.shtml?tid=11 Bruce Perens and Eric Raymond respond
http://newsforge.com/newsforge/03/09/10/2321224.shtml?tid=11 "Linus Torvalds" responds

LOL!

Also of note: MuParadigm's point bu point rebuttal to Darl's letter. (A long read, but worth it.)

Contacted for comments, Elbert Vlastuin (SCO Regional Manager for Benelux) confirmed that Dupaco's contract had been terminated and that SCO would be in court on Wednesday, but disputed Monninkhof's claim that the only offer on the table was to be a zero-margin reseller. "SCO in Benelux has decided to take a new approach to the market, we want to be more visible to the market. We are looking for a solution to the current situation, where there is only one distributor, how to work with them."
______________________________________________________________________

Damn...if that's how you treat your business partners....

-By William M. Bulkeley, The Wall Street Journal; 617-654-6704

(somewhere right now, Darl McBride is clutching his sore gonads and moaning)

____________________________________________________________________
| Sue the world because your software sucks. $50 Million
| Try and attach your license fees to GPL'd Linux kernel. $795 per seat.
| 0 bids on SCO license on ebay. Priceless...
|http://cgi.ebay.com/ws/eBayISAPI.dll?ViewItem&item=3634453924&category=182
|
____________________________________________________________________

Brainteaser for today...
If SCO has such wonderful evidence, why does all those who are countersuing them have to file Motions to Compel Discovery?

Morons.

(I can't remember where I read it, but Groklaw probably has the story somewhere)

It will expand its licensing program (because it's been such a success, I'm sure) and now they will be "offering a migration path" so their customers can escape Linux and return to proprietary operating systems. Note the plural, please. Like, for example, Unix, even a competitor's Unix. Some say they mean Microsoft. Well, well. Why ever might they want to send their customers to Microsoft?

So now it's "anything will do, just as long as it ISN'T an OpenSource solution? WTF!?

* Note = by 'better', I mean 'worse'

At least, that's what the GPL is supposed to do (and actually does, IMHO). However, one of SCO's lawyers has apparently cooked up this wacky argument to argue that the GPL actually doesn't do that:

1) The GPL is unenforceable, because--

a) it forces derivative creators to give up some of the rights that they would otherwise enjoy under U.S. Copyright law;
b) the Constitution makes the rights that derivative creators willingly give up by modifying and distributing GPL'd software inalienable, even though those rights are statutory and the GPL appears to be an enforceable license;

2) Because the GPL is unenforceable, the court should treat it as a failed charitable trust agreement rather than a regular unenforeceable contract;

3) The common law governing failed charitable trusts directs us to find the 'next best substitute' for what the trustor would have wanted (under the cy pres doctrine);

4) The 'next best substitute' for the rights and responsibilities described in the GPL is not normal copyright, but rather public domain.

5) Therefore, SCO gets to steal all of everything, everywhere!

The argument is, to put it mildly, a bit novel. Although I'm neither a contract nor a copyright nor a charitable trusts attorney, I'm going to go out on a limb and say it makes about as much sense as Matrix Revolutions.

OpenSource isn't an "American thing"; it's global. Some penny-ante third-string software company can't overthrow the copyrights over the entire earth. Especially if had to (attempt to) destroy sturdy treaties like the Berne Convention.
(Again, don't take my legal advice on this. I only got a 'B' in social studies, so I don't know if it's possible to invalidate the entire Berne Convention just to benefit SCO. Something tells me that would be a bit implausible.)

a) It's all a pump and dump scheme and as soon as all their stock is sold, they'll escape to somewhere without a working Extradition Treaty with the US. or...
b) This is all a mad scheme cooked up by Microsoft (and possibly Sun Microsystems) to destroy OpenSource. (The recent "Go Proprietary and get a Discount" deal makes this plausible.)

...then 'winning' isn't in their game plan.
Considering how bad their case has been handled by Boise/Heise/Zack, I don't think 'winning' is on their agenda either.

When [SCO's lawyer] was speaking, he wandered around the courtroom and seemed to be talking off the top of his head. [IBM's lawyer] stood at the lectern and seemed to be working from well-prepared notes that he had practiced. We enjoyed listening to his arguments.

(from these reports of the hearing)

We love the SCO Information Minister.org!

***********************************************************

THE SCO GROUP, INC.

INTELLECTUAL PROPERTY LICENSE

[There really is no such thing in the law. There is copyright. There are patents. Trade secrets. So which is this? They never actually tell you. Any contract lawyers out there care to comment on vague contract terms? Even in the definitions section, there is no definition for "Intellectual Property". The definition for "SCO IP" is that it means "SCO Intellectual Property". Hmm. A puzzle. How playful.]

IMPORTANT, READ CAREFULLY ALL TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT
("AGREEMENT") WHICH HAS BEEN PROVIDED TO YOU AND IS INCLUDED WITH THE
CERTIFICATE OF LICENSE AUTHENTICITY ("COLA"). BY EXERCISING YOUR
RIGHTS UNDER THIS LICENSE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND
UNDERSTAND IT, AND YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO
NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE RIGHTS GRANTED
HEREUNDER IN ANY MANNER.

YOU UNDERSTAND AND AGREE THAT SCO MAKES NO GRANT OF RIGHTS OR WARRANTIES OF ANY
KIND EXPRESSED OR IMPLIED WITH RESPECT TO ANY SOFTWARE OTHER THAN THE SCO
INTELLECTUAL PROPERTY DEFINED BY THIS AGREEMENT.

This Agreement does not include any rights to access, use, modify or distribute
any SCO source code in any form under any licensing arrangement.

[This is the no peeking, no touching, give-up-the-GPL clause, none of that modifying it so it actually does what you need and want. Just sit still and behave, like a good, passive consumer, and take what they give you and like it, too. If you agree to this clause, wouldn't you essentially be agreeing not to peek at any kernel code at all at the moment, since we don't exactly know which lines are involved? And even if we knew what they were alleging with specificity, we don't know what the courts will rule, so why would we voluntarily give up GPL rights we already have? And pay for it too? I notice they don't stop using GPL'd software while they wait for a ruling. And they've been charged with continuing to distribute it, including the kernel, so what's the deal here? We don't hate the GPL. It's proprietary software companies who hate the GPL. It benefits the rest of us. And that phrase "under any licensing arrangement"... I guess that means forget about telling them they already released it to you under the GPL. Psst. I think they did, though. So do some folks in Australia. So do IBM and Red Hat.]

DEFINITIONS

"Agreement" is the contract between you ("You") and The SCO
Group, Inc. ("SCO"), relating to the rights acquired by You. The
Agreement comprises (i) this document, (ii) any amendments agreed by both You
and SCO in writing and (iii) any additional terms and conditions included in the
COLA. Such additional terms may pertain, without limitation, to the following:
term, fees and payment, number of permitted CPUs, registration requirements,
restriction on runtime environment and transfer of Your rights.

"Code" shall mean computer programming instructions.

"CPU " shall mean a single physical computer processor.

"Desktop System" means a single user computer workstation controlled
by a single instance of the Operating System. It may provide personal
productivity applications, web browsers and other client interfaces (e.g., mail,
calendering, instant messaging, etc). It may not host services for clients on
other systems.

"Method" shall mean the human or machine methodology for, or approach
to, design, structure, modification, upgrade, de-bugging, tuning, improvement,
or adaptation of Code.

[Try that sentence using just one of the endings at a time, as in "'Method' shall mean the human or machine methodology for, or approach to, upgrade."]

"Object Code" shall mean the Code that results when Source Code is
processed by a software compiler and is directly executable by a computer.

"Operating System" shall mean software operating system Code (or Code
that substantially performs the functions of an operating system) that is a
distribution, rebranding, modification or derivative work of the Linux®
operating system.

"SCO IP" shall mean the SCO intellectual property included in its
UNIX-based Code in Object Code format licensed by SCO under SCO's standard
commercial license.

[Say, what? By "intellectual property", you mean exactly what?}

"Software" shall mean the Operating System in Object Code format.

[In their dreams. They are redefining the word software to mean not source code. How strange. It starts as source code. Software to them is binary CDs you buy in a box. Like detergent. Or bottled water. Then you use it for its intended use. Then you buy more. From them.]

"Source Code" shall mean the human-readable form of the Code and
related system documentation,
including all comments and any procedural
language.

[Huh? Comments are source code? I didn't know that. Procedural language...]

"System" shall mean a computer system, containing the licensed CPUs,
controlled by a single instance of the Operating System.

[None of that dual booting, you pirates.]

"UNIX-based Code" shall mean any Code or Method that: (i) in its
literal or non-literal expression, structure, format, use, functionality or
adaptation (ii) is based on, developed in, derived from or is similar to (iii)
any Code contained in or Method devised or developed in (iv) UNIX System V or
UnixWare®, or (v) any modification or derivative work based on or licensed under
UNIX System V or UnixWare.

[This is where I got it. They're just horsing around, trying to come up with the worst license ever known to man since the founding of the world so nobody actually buys it. I can see the legal team rolling on the floor as each new phrase sprang to mind. "We'll say our stuff is both code AND methods!" "Oh, great one, I bow before you, sir. Hahahahahaha." "Wait...how about 'in literal and NONLITERAL form'?" "Oh, stop! You're killing me." "I can top you all. Take this: 'that is based on, developed in, derived from or IS SIMILAR TO any code contained in OR METHOD DEVISED OR DEVELOPED'." "Oh, that's rich! Stop! I can't breathe! So funny."

"Update" shall mean the updates or revisions in Object Code format of
the Software that You may receive. Update shall not include any alteration,
modification or derivative work of the Operating System prepared by You.

[ "Heh heh. Take this: our victims.. er...customers can't update. 'Kay? They can only RECEIVE revisions in object code!" "Perfect! Ha ha ha. When there is a security alert, they'll be helpless and we'll bring them to their knees. We can send them revisions any time we feel like it. Maybe six months later, like Microsoft. Take it or leave it." (cough) (sputter) "Heh heh. I know. They have to raise their hand to go to the bathroom. No? Too much?" "No, no! We'll say it's implied in the license. Ha ha ha."]

GRANT OF RIGHTS AND OBLIGATIONS

Provided You comply fully with this Grant of Rights and Obligations, SCO will
not consider such use of the SCO IP licensed by You under this Agreement to be
in violation of SCO's intellectual property ownership or rights.

[This is what you are buying. They won't sue you. An offer you can't refuse.]

SCO grants You and You accept from SCO, the following limited, non-exclusive
rights. This Agreement does not grant a right to receive any distribution of
software from SCO or any other third party. You are not granted any other rights
except for the rights specifically set forth herein. You acknowledge that,
subject only to the rights specifically granted herein, all rights, title, and
interest in the SCO IP shall remain at all times the property of SCO. The SCO IP
is protected by copyright, under local law and under international copyright
conventions.

[This is an attempt, I think to squeeze around the GPL.]

Provided You pay the applicable license fee and complete the required
registration of the COLA, SCO grants You the right to use all, or portions of,
the SCO IP only as necessary to use the Operating System on each System for
which the appropriate CPUs have been licensed from SCO as designated on the
COLA, for the applicable server or desktop system. You must take reasonable
means to assure that the number of CPUs does not exceed the permitted number of
CPUs. The rights licensed by this Agreement are limited to the use of the SCO IP
in conjunction with the Operating System solely in Object Code format. Right to
use licenses for Desktop Systems are not usable for, or transferable for use,
with other Systems.

LIMITATION OF WARRANTY

SCO WARRANTS THAT IT IS EMPOWERED TO GRANT THE RIGHTS GRANTED HEREIN. SCO does
not warrant that the function contained in SCO IP will MEET YOUR requirements or
that its operation will be uninterrupted or error free.

[How can they warrant they have the rights when they don't know yet if they have copyright ownership? And they don't know -- although the rest of us may have a clue -- if the GPL will stand, in which case they just might not have any such rights. This must be one of those clauses you had to be in the room and hear discussed to know what they are thinking.]

ALL WARRANTIES, TERMS, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES
WITH RESPECT TO THE SOFTWARE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW,
CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY ANY PARTY OR OTHERWISE (INCLUDING,
BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OR ANY IMPLIED WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL
PROPERTY RIGHTS) ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED. SOME STATES OR
COUNTRIES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE
EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS
AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE OR COUNTRY TO
COUNTRY.

[What? No indemnification? A certain analyst who has no name might be interested to know about this. That's not a suggestion.]

LIMITATION OF LIABILITY

[Good grief. None of that either?]

UNDER NO CIRCUMSTANCES WILL SCO OR ITS REPRESENTATIVES BE LIABLE FOR ANY
CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES, WHETHER
FORESEEABLE OR UNFORESEEABLE, BASED ON YOUR CLAIMS OR THOSE OF YOUR CUSTOMERS
(INCLUDING BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE
OF MONEY OR USE OF THE SCO PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF
DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF
BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT,
MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, EXCEPT
ONLY IN THE CASE OF PERSONAL INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW
REQUIRES SUCH LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH SCO MAY
INCUR IN ANY ACTION OR PROCEEDING EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY YOU
TO SCO FOR THE LICENSE OF THE SCO PRODUCT THAT DIRECTLY CAUSED THE DAMAGE.

[I take it if their software makes my house burn down, I get to sue if I am injured physically, although not for the house, just for my injuries. If *their* house burns down, or other difficulties arise, like they lose all their lawsuits and I find out they had no right to offer this license in the first place, I get my money back only if I find some way around this paragraph's exclusions of pretty much everything. They know you won't sue them for only what you paid for the license, anyway, which is why they limit their damages to that, because no lawyer would be likely to take the case. (Unless he uses GNU/Linux and just feels inspired by it.) It costs more than a thousand just to go to court with the worst lawyer in the country, so if the relief is $699, let's say, well, you do the law firm math.]

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF EXCLUSION OF LIABILITY FOR
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION
MAY NOT APPLY TO YOU.

TERM AND TERMINATION

This license shall remain in effect until terminated as set forth herein. You
may terminate this Agreement, without right to refund, by notifying SCO of such
termination. SCO may terminate this Agreement, upon reasonable notice and
without judicial or administrative resolution, if You or any of Your employees
or consultants breach any term or condition hereof.

[They mean, I gather, that they don't have to sue you. They just cut your air hose. You can't sue them, presumably, in their Wonderland, because you agreed to this clause. No refund it is.]

Upon the termination of this Agreement for any reason, all rights granted to You
hereunder will cease.

[What about your obligations? That's not even going into the fact that they just told you they can drop you any time they please if they say you have breached and they don't have to sue you and thus prove your violation in court. ]

ASSIGNMENT

You may not assign, sublicense, rent, lend, lease, pledge or otherwise transfer
or encumber the SCO IP, this Agreement or Your rights or obligations hereunder.

[When they say you can't share, they mean for life. Get over it. There's no free lunch. You can't get your money back from them and you can't get it back by selling the license on eBay either, I gather. You're stuck with the license for life and you might as well be buried with it. A desperate man might breach and hope to get cut off by SCO, but otherwise, it's with you, and only you, for life.]

MISCELLANEOUS

All notices or approvals required or permitted under this Agreement must be
given in writing. Any waiver or modification of this Agreement will not be
effective unless executed in writing and signed by SCO. This Agreement will bind
Your successors-in-interest. This Agreement is governed by the laws of the State
of Utah, U.S.A.; excluding (i) Utah's choice of law principles and (ii) the
United Nations Convention on Contracts for the International Sale of Goods. If
any provision of this Agreement is held to be unenforceable, in whole or part,
such holding will not affect the validity of the other provisions of this
Agreement.

So forget some sleight-of-hand corporate passing of the license on to a merciful corporate friend in a "Reorganization Agreement" and don't try dying and leaving your license to your kids and think that they can sell it on eBay either. If they try any funny business, SCO gets to drag them and your corpse before a Utah firing squad. Don't forget your firstborn.

So, how do you like it? They have to threaten to sue to get customers to take such a wonderful license as this? Surely, now we'll all buy one. No? What do you want? Egg in your beer?

I didn't know SCO had such a sense of humor. But this was great. I bet if you tested my immune system, you'd find it rocketed upward. Nothing like a good laugh.

When you are ready to be serious, reread the definition of "Method" and then the "Unix-based Code" definition and put them together in every possible combination. And just for comparison, here's the GPL, taken from SCO's website, so you know what your choices are:

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