THERE IS NO SYSV OR SCOX IN LINUX

ColonelZen

July 19, 2006

(Except the Helwig code and some old device drivers willfully contributed as Caldera).

There have been numerous code comparisons between SysV and Linux - including one by Santa Cruz - and the results have been uniformly negative (save 200 lines by SGI of public domain BSD code - long since removed - also in SysV). There simply isn't any significant overlap of actual code between Linux and anything which *might* be copyright enforcible by SCOX.

Over the last three years there have been three (or more depending upon interpretation) court orders for SCOX to produce any evidence of any code in Linux which *might* infringe any of their code. NOT ONE LINE has been clearly demonstrated. While the remaining evidence is sealed, commentary by IBM makes it appear that the "specific instances" asserted it SCOX's narrowed claims remain scattershot and vague without sufficient reference to specific material. Nor is there any plausible reason to hide any evidence of infringement.

Judge Kimball has called SCOX's lack of evidence for any infringement or other misuse in light of SCOX's many screetching public claims "Astonishing".

All public evidence to date points to the title conclusion: There is NO SysV or SCOX code in Linux.

-- TWZ

< EOM >

7:44:13 AM 


SCOX DOES NOT OWN UNIX

ColonelZen

July 19, 2006

"Unix" is a trademark of "The Open Group".

While there was a long standing presumption that SCOX's predecessor, Santa Cruz Operation did have some ownership claim, for the collective at least, that turns out to be fallacious.

In SCO v Novell failed to produce a copyright transfer document as proof that copyrights had ever transferred from Novell to Santa Cruz. The documents entered and discussed, the APA with amendment 2, judge Kimball averred appeared not to transfer copyright. Subsequently letters to Novell from SCOX predating that legal action have come to light which indicate that SCOX knew full well that it did not own the Unix copyrights.

The Unix copyrights are deeply and heavily encombered and (very) likely non-enforcible in specific cases. In 1993 Federal Judge Debevoise wrote a finding in the USL v BSDI case which remarked that AT&T's lax treatment of the (v32 Unix, from which SysV is mostly derived) code for Unix would very likely result in a finding that it had lapsed to public domain. This implies that any copyright action regarding that code will need to establish a specific chain of ownership for the specific disputed code; in the case of code in SysV and antecedant unix that would be *very* difficult.

-- TWZ

< EOM >

7:45:21 AM


SCOX INFRINGES IBM CODE VIA GPL VIOLATIONS

ColonelZen

July 19, 2006

IBM's Counter Claim 8 against SCOX essentially asserts the following facts and asks for a finding of fact by the court for the following.

Way back when SCOX was Caldera and actively promoting and selling Linux a gent named Christoph Helwig with, according to posts by his supervisor on the LKML, Caldera's permission donated some code to the Linux kernel. And BTW there are a few device drivers with Caldera copyright too.

Then along came IBM, and they saw Linux and found it was good, and donated and continue to donate code to linux by the cubic boatload.

Then Ralphie and Darl while running Caldera decided they were too stupid to run a real business and decided to run an extortion racket. They may have been right about the former.

Anyway they renamed themselves "The SCO Group" and started offering - and actually selling "SCO Source Licenses" covering "SCO Code in Linux" for various binary only versions of the Linux kernel AT THE SAME TIME THEY WERE DISTRIBUTING THAT SAME LINUX KERNEL.

Little problem here. IBM's code was in that Kernel. Along with about ten thousand other programmers. And the ONLY right SCOX had to copy, modify, or distribute that code was the GPL. Which among other things expressly excluded works sublicensed by an incompatible - and VERY EXPRESSLY excluded binary only licenses from its own grant of license.

So there was SCOX offering the SCO Source License on the very same instances of binary kernels it was distributing from its own website which contained cubic boatloads of IBM code but with NO license modify (by creating SCOX's configured kernel) or distribute IBM's code, since they had lost aegeis of the GPL by offering their own incompatibile license.

-- TWZ

< EOM >

7:46:29 AM 


SCOX LIABLE FOR 1B LANHAM CLAIMS?

ColonelZen

July 19, 2006

SCOX counsel has all but admitted in court that their claims of stolen code and copyright infringement against Linux were bare assed lies.

During the first two years of SCOX's berserker butterfly rampage IBM was doing an estimated 5 Billion a year in Linux related business. If SCOX's FUD may have slowed Linux adoption 10-20% a billion dollar damage claim is not unreasonable. Several times that is more likely.

Of course SCOX would have real trouble raising 10M in cash at this point.

-- TWZ


< EOM >

7:47:49 AM


KILROY MCBRIDE WAS THERE

ColonelZen

July 19, 2006

(On Yahoo SCOX message board)

See message 336423 and followup 336459 for evidence and argument. Darl McBride or someone in his family has been posting here.

I have no idea of what, if any, legal implications there are for the CEO of a litigious lunatic excuse for a corporation posting on the Yahoo stock board for that company.

I am contemptuous of the gutless wonder's cowardly refusal to own up to it.

-- TWZ


< EOM >

 

7:49:18 AM


NO METHODS AND CONCEPTS BY SCOX

ColonelZen

July 19, 2006

... are likely to be upheld. No "method and concept" claim for previously disclosed by others knowledge has ever been upheld outside of a patent case that I am aware of. The huge bulk of "methods and concepts" of SysV were disclosed in BSD; books on Unix internals have long been available.

Note that SCOX itself originated none of the "methods and concepts" in dispute. In actual fact SCOX "disclosed" them itself by distributing Unix code as Caldera.

Violation of trade secret and confidential information has been held tortuous by the courts but such is only the original disclosing party (which is not IBM) is liable. After disclosure such knowledge is considered public and no longer confidential or secret. Even in contracts prohibiting disclosure of specific information courts do not enforce such clauses once that information is disclosed by other channels. (I am not a lawyer, this is my understanding and opinion only).


-- TWZ

< EOM >

7:50:20 AM


SCO OWNS UNIX

deepdistrust

July 19, 2006

Caldera owned Unix, according to Ransom Love, one of its cofounders. That makes SCO the current owner of Unix. Colonel Loon is delusional.
< EOM >

8:16:20 AM


SCO OWNS UNIX... MANUALS!!! NOVELL OWNS UNIX

idc3009i

July 19, 2006

The APA only transferred copyright of the manuals to TSG. Not even TSG can show that anything else was transferred even though they were writing begging letters to Novell for the copyright.

Nerny-nerny-ner-ner!
< EOM >

8:31:37 AM


Re: SCO OWNS UNIX

deepdistrust

July 19, 2006

< The APA only transferred copyright of the manuals to TSG. >

I believe there is an agreement in place that Novell will transfer copyrights as soon as SCO needs them. I also believe ownership is not just copyright ownership. It's that 'control rights' thing McBride was talking about.

The truth of the matter seems to be, when Love was at the helm, the relations between Novell and Caldera were much more cordial, and Love had every expectation that copyrights will be transfered without any difficulty. Now, especially after SCO started the lawsuit, Novell is trying to screw SCO and help IBM. It won't be allowed to do that.
< EOM >

1:54:21 PM


Contract Language (Was DDT: SCO OWNS UNIX)

heimdal31

July 19, 2006

<<< The APA only transferred copyright of the manuals to TSG. >

I believe there is an agreement in place that Novell will transfer copyrights as soon as SCO needs them. I also believe ownership is not just copyright ownership. It's that 'control rights' thing McBride was talking about.>>

Not quite.  The amdenment actually reads:

"As of the 16th of October, 1996, the September 19, 1995 Asset Purchase Agreement between Novell Inc. and the Santa Cruz Operation (SCO) is amended in the following respects:
A. With respect to Schedule 1.1(b) of the Agreement titled "Excluded Assets" Section V Subsection A shall be revised to read:
All copyrights and trademarks,except for the copyrights and trademarks owned by Novell as of the date of the Agreement required for SCO to exercise its rights with respect to its acquisition of UNIX and Unixware technologies. However, in no event shall Novell be liable to SCO for any claim brought by any third party pertaining to said copyrights and trademarks"


A naive reader might thing that would imply a transfer of copyright and trademarks. However, there are a few caveats to keep in mind. First of all, the intent to transfer a copyright can be indicated in contract. However, actual copyright transfer can only be handled by filing with the US Copyright Office. Correspondence between SCO and Novell indicated that before the lawsuit against IBM, SCO was trying to get Novell to transfer copyrights and Novell was refusing to do so. Later, SCO registered copyright for some of SysV Unix and later still Novell registered for the same thing and for a number of other related items. So, if the APA really means that SCO should get the copyrights from Novell and Novell refused and then registered SCO's copyrights, then SCO should be suing Novell for stealing their copyrights. Tellingly, this was not a part of the suit that SCO brought against Novell.  Instead SCO sued for what Novell had said and demanded the copyrights as an award for damages.  If SCO owned them contractrually, then why not sue on the strength of that, and why demand what they already have?

Moreover, the APA, as ammended, does not mean what you think it means. The relevant clause here is "required for SCO to exercise its rights with respect to its acquisition of UNIX and Unixware technologies." There is other contract language, unammended, that allows Novell to direct SCO to do whatever it says, including waiving rights that SCO has under the contract. So, it boils down to the fact that SCO doesn't really have any REAL rights. Thus, since it doesn't have any rights, it doesn't need any copyrights to exercise those non-rights.

BTW, rec'd 758 for the humor value.
< EOM >

2:05:47 PM


Re: Contract Language (Was DDT: SCO OWNS UNIX)

deepdistrust

July 19, 2006

To me, the phrase "its *acquisition* of Unix and Unixware technologies" means that SCO got Unix ownership. We don't have to agree, of course, and the language is quite miserably unclear. I will point out that SCO is actively disputing interpretations of the contract like yours. ( Brent Hatch: "The source code without the associated copyrights isn't worth anything." )

I find it extremely odd that Ransom Love, a cofounder of Caldera, doesn't know what he came to own when he acquired SCO. I think he very well does know, and I think Caldera owned Unix.

Meanwhile, the correct response to "SCO doesn't own Unix" snake-oil is "SCO Owns Unix" snake-oil.

< EOM >

3:25:05 PM


Re: Contract Language (Was DDT: SCO OWNS UNIX)

heimdal31

July 19, 2006

<<To me, the phrase "its *acquisition* of Unix and Unixware technologies" means that SCO got Unix ownership. We don't have to agree, of
course, and the language is quite miserably unclear. I will point out that SCO is actively disputing interpretations of the contract like
yours. ( Brent Hatch: "The source code without the associated copyrights isn't worth anything." )>>

I think the franchise analogy makes the most sense.  old-SCO became the exclusive franchisee with the ability to sub-franchise and further develop the code.  They were also the support base.  That is a perfect example of why the source code would be needed without the copyright (and really not that much different as to why SUN, IBM, SGI would get the source code without copyright.)

If you want to look at contract language, there's the bit where Novell reserved the right to direct Old-SCO how to act towards existing licensees and the right to act in old-SCO's stead if old-SCO didn't do as directed.  Again, that clearly supports super-franchisee not outright owner.  To paraphrase Hatch: "Ownership without veto power isn't worth anything," and the contract language regarding Novell's veto power is not "miserably unclear."

To others:  If I'm trolling myself, do I get recs for getting content instead of meat up?  If so, which nym?
< EOM >

3:44:50 PM


Re: Contract Language

El Corton

July 19, 2006

< First of all, the intent to transfer a copyright can be indicated in contract. However, actual copyright transfer can only be handled by filing with the US Copyright Office. >

No, copyright transfer is effected by a Section 204(a) writing, or by operation of law. The Copyright Office has nothing to do with it. After the transfer is made, a change-of-ownership document can optionally be filed there, but that doesn't constitute either the transfer itself or evidence of its validity.

< So, if the APA really means that SCO should get the copyrights from Novell and Novell refused and then registered SCO's copyrights, then SCO should be suing Novell for stealing their copyrights.  >
It's impossible to "steal" a copyright. Falsely registering a copyright you know you don't own (as SCO has done) is a crime under 17 USC 506(e).
< Instead SCO sued for what Novell had said and demanded the copyrights as an award for damages.  >

SCO did not demand that the copyrights be awarded as damages. It requested that the court order Novell to assign its copyright registrations (not to be confused with the copyrights themselves) to SCO -- a remedy not available on the complaint stated. In its Second Amended Complaint, SCO pleads in the alternative for the court to order Novell to transfer the copyrights at issue, if the court finds that Novell hasn't already done so.
< EOM >

3:47:17 PM


Re: Contract Language (Was DDT: SCO OWNS UNIX)

deepdistrust

July 19, 2006

< there's the bit where Novell reserved the right to direct Old-SCO how to act towards existing licensees and the right to act in old-SCO's stead if old-SCO didn't do as directed. >

OK. For existing licensees, this does make more sense because Novell was getting the 95%.

SCO still owned Unix in the same sense that USL and Novell owned Unix even when they didn't have all the copyrights. Colonel Loon was going for the popular myth, and I was going for the contradiction, but ownership doesn't have anything to do with the lawsuit if Novell's override provisions kick in.

Can Colonel Loon now stop saying SCO doesn't own Unix?
< EOM >

4:17:41 PM 


Re: Contract Language (Was DDT: SCO OWNS UNIX)

ColonelZen

July 19, 2006

>>> Can Colonel Loon now stop saying SCO doesn't own Unix? <<<

I have no idea of the capabilities of this Colonel Loon of whom you seem so enamored, but **I** can say or not say as I please. And the truth still is that SCOX does NOT own UNIX.

>>>>
SCO still owned Unix in the same sense that USL and Novell owned Unix even when they didn't have all the copyrights. Colonel Loon was going for the popular myth, and I was going for the contradiction, but ownership doesn't have anything to do with the lawsuit if Novell's override provisions kick in.
<<<<

On the unlikely theory that you are misinformed or don't understand the proper mapping of complex events into language, I'll eludicate.

Once upon a time there was UNIX. It was a PRODUCT. It was licensed by AT&T and if you had UNIX, it came from AT&T. Then USL, then Novell. Then the trademark for the *PRODUCT* UNIX came under attack (in the same timeframe as USL v BSDI - if USL "won" anything it was that BSDI could not use the "UNIX" name). Well a compromise between the factions was that henceforth UNIX would be a BRAND. And Novell (under some duress AIR) transferred the trademark and right to assign the brand to the Open Group. Thereafter a collection of code was ***A*** UNIX and the only singular THE UNIX was the BRAND owned by The Open Group.

AT&T owned THE UNIX aka SysV. So did USL. So did Novell for a while. Then the trademark was transferred and technically SysV became only **A** Unix, one of many, like AIX, and Solaris (later) and HP-UX.

Now there are parallels between AT&T, USL, Novell vs SCOX source code ownership.
After USL v BSDI practically USL only owned *copyright* on the handful of files held out of the settlement, it's own subsequent improvements + the collective copyright. Ditto for Novell. Ergo USL and Novell de facto owned copyright to only their own improvements to SysV. Likewise SCOX owns only SCO's (we think) + it's own improvements to SysV. But from K's comments we see that evidently neither SCO nor SCOX ever owned the collective copyright to SysV.

Now once upon a time SysV was the one true and only UNIX. And even after UNIX became a BRAND rather than a PRODUCT it was fashonable among it's devotees to call SysV "UNIX". And Unixware/Openserver is the most direct lineal descendent of SysV ... and it was certainly positive marketing to pretend that Unixware/Openserver was the one and only UNIX (hence the Ransom Love quote). But the cold fact is that "UNIX" became a BRAND, ****NOT**** a product before the development and licensing rights for SysV transferred to SCO (Santa Cruz, not Caldera in drag). SCO and now SCOX own and owned ***A*** UNIX not UNIX.

And if you complain that I'm splitting hairs, do I own ***A*** Honda or do I own Honda?

So AT&T, USL, and NOVELL owned "UNIX", the PRODUCT as copyright and name.
Novell assigned the trademark and "UNIX" became a BRAND.
Henceforth "UNIX" the PRODUCT was a BRAND owned by The Open Group.
And SysV was another BRAND of UNIX.

Properly, "UNIX" is a BRAND owned by The Open Group. Neither Santa Cruz nor SCOX ever owned it.

Now by historical charity you could still call SysV "UNIX" because it once was the true and only UNIX, even though that is not true today.

AT&T, USL, and Novell owned the collective copyright for SysV which one can loosely (and inaccurately, now) call UNIX.

Neither Santa Cruz nor SCOX ever owned the collective copyright to SysV which was once properly called "UNIX".

When Santa Cruz bought development and marketing rights, "UNIX" was already a BRAND, a trademark owned by The Open Group.

In sum:
SCOX does not and never did own "UNIX" the brand, or named Trademark.
SCOX does not and never did own the collective copyright to SysV, the code once
called "UNIX".

Ergo:

SCOX DOES NOT OWN UNIX.

QED.


-- TWZ
< EOM >

6:55:27 PM


Re: Contract Language (Was DDT: SCO OWNS UNIX)

monsieur_bobo

July 19, 2006

[AT&T, USL, and Novell owned the collective copyright for SysV which one can loosely (and inaccurately, now) call UNIX.]

This isn't quite true. By the time Novell got control of the SysV source base, an awful lot of code was copyright by Sun Microsystems, and quite a few others. I suspec that the primary reason that Novell never transfered the copyrights, and that old SCO never asked for them is that both parties knew that was partically impossible. It took a set of complete idiots like D. McBride et. al. who were totally ignorant of Unix history to think they could make a Federal Case out of the ownership of SysV.

< EOM >

9:08:32 PM 


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