Just got back from hearing Mr. MvBride
by John Crowley
February 02 2004
PJ,
You are amazing. I just got home from Harvard and have not even started typing
up my notes, and you already have a post! I'll type up my thoughts now, along
with some questions that the group asked after the session ended.
- JC
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10:21 PM EST
Just got back from hearing Mr. MvBride
by PJ
February 02 2004
Great! I have to go do some paid work now.
10:26 PM EST
Notes from Harvard
by John Crowley
February 03 2004
I attended the session with Darl this evening at Harvard, and have typed up some of the points I noted as being important. I did not get it all, nor did I try: I assumed that the videofeed would be made available. I hope that others at the presentation (or who watch the feed) will correct me where I erred. Now off to bed... I am in awe of PJ's ability to stay up to 3 AM. Enjoy!
KEY TAKE AWAYS
Summary of IP Claims: SCO owns all Unix. Linux could not have become and enterprise class OS without assistance of Unix vendors who have SCO Unix licenses. SCO licensees all have confidentiality agreements. Therefore someone broke the confidentiality, and Linux has infringing code. (Somehow I don't think those syllogisms would withstand the scrutiny of a Formal Login 101 class, let alone a good lawyer.)
Summary of GPL Claims: The GPL goes against Eldred v. Ashcroft in the sense that it fails to provide individual (economic) incentive to create new software. The GPL passes any copyright risks onto the user through the "no warrantee" clause.
A Taxomony of their Claims: SCO is pursuing copyright Slander with Novell. It is pursuing breach of contract with IBM, and may pursue straight copyright claims against other parties. SCO is claiming that x% of Linux is OK, and y% is not. They want licenses to use the part that is not okay, and deflected questions about how that IP could be removed from Linux, even if going back to 2.2 would be okay. The only road they want people to see is their IP licensing program.
OUTLINE OF PRESENTATION
1. Value of Intellectual Property Market in Software
2. Copyright and Eldred v. Ashcroft
3. History of Unix
4. What SCO owns
5. Linux: how it grew too fast
6. Open v. Proprietary Software
7. SCO v. Free and Open Software
PRESENTATION NOTES
Darl as Illusionist: Seeing Darl brought a key insight into his character: he is an illusionist, a person who distracts his audience and leads them away from the activity that he does not want them to see. At numerous points during the presentation, he turned to the audience to direct attention away from the rational issue at hand and towards a emotional reaction. If I were an analyst, I would watch for this technique and immediately ask what he does not want you to see or ask.
Source of Insecurity: The assertion that copyright laws might be outdated scares SCO, which makes sense for a company that is staking its business on a lawsuit over contracts which govern their IP acquisitions. Darl's presentation made it clear that SCO is not just pursuing a breach of contract case with IBM; it is trying to bring law and order to the wild west of a new age when intellectual property makes up the majority of corporations's assets.
SCO Owns it All
Darl asserted that SCO owns all rights, title and interest to Unix.
Greed is Good: Darl cited Eldred v. Ashcroft to support his assertion that individual incentives are best way to forward public good. He confused free software as being solely "free as in beer," and continued his unfounded claims that the GPL is a slipperly slope to a world in which no one gets paid for their ideas and a Napster-like theft of all intellectual property will govern life in the frontier of the "digital age." (and I hate that term, digital age....)
All Your Nixes Belong to Us: Darl put up a tree with the trunk as SCO Unix. The branches included the following Nixes:
Linux 2.2: The Hobbyists' OS. Yup, those were Darl's words. In 1999, he claimed that Linux was merely at a "hobbyist" level. He claims that it took 25 years to build Unix into an enterprise level OS with 32 processor capabilities, NUMA, and high reliability, but it only toook Linux from 1999 to 2003 to get from the 2-processor SMP capabilities of kernel 2.2 to the 32 process capabilities of 2.6. He conveniently left out the part about Caldera sponsoring that work, but I did not get called on to ask about it.... Believe it or not, Darl believes this point to be at the center of the lawsuit. He repeated this point several times. Why he believes that Linux could not have grown up on its own is beyond me.
No Free Beer For Everyone: Darl continued his confusion of free as in beer in a discussion of copyright law in the context of FOSS software. He does believe that a developer has the right to GPL his or her work; he just does not want that work to contain any SCO copyrightable material (which seems to be everything related to Unix since 1969...). He defined Copyleft as "the opposite of Copyright. Copyleft is a free work, that you don't charge a fee for..."
GPL's No Warrantee Exposes End User to Risk: Darl claims that the no warrantee language in the GPL exposes the end user to the liabilty for using the product, instead of just the liabilities that arise during the use of the product. In other words, that the end user would responsible for (to be very specific) infringing on SCO's copyright. Darl also claimed that David Boise (yes, the silent one) said that SCO would be taking an end user to court by Feb 18. I seem to get the inkling that the DMCA would also come into play, because the infringing works that SCO is citing (the header files) lacked the copyright header information that had been specified in the AT&T/BSDi agreement.
Boxed Sets are Fair Game: Sontag also made clear that boxed editions of Linux are fair game for lawsuits, as they still infringe.
Indemnification Plans Are Farces: Darl characterized all the indemnification deals from vendors as being marketing stunts, requiring the user to pay a separate fee. But he only addressed the corporate ones...
Specious Terrorist Claims: For good measure, Darl threw in some claims about cyberterrorism and civil disobedience, claiming that SCO was "working with Washington" to ensure that export controls are added to OSS. Because there is currently no way to prevent Linux from getting to DPRK or Libya. Hmm... As one MIT student put it, most Crypto was developed in Canada. Not to put to fine a point on it, if a country can acquire nuclear weapons technology and fissile material, do you really think a few laws governing software export controls is going to prevent them from getting a copy of Unixware or Linux? Gees....
Slashdotted phone. I have not checked, but Darl claims that someone put his name, address, and home phone on Slashdot during the Superbowl, leading to a DoS attack on his home phone line. If this is true, someone tell the babies that this is not a game. Not cool, especially as it just plays into SCO's hands.
SCO as Sherriff in the Ole' West. Darl characterized the current situation with Linux and OSS as the wild west, where cyberterrorists, civil disobedients, and renegade developers are violating the laws and slowing the progress of science (and the accumulation of wealth through licensing of ideas). SCO is just trying to bring law and order back, and will use bounties and other methods to make that happen. In other words, they somehow view themselves as the lone whitehat in town, who needs to take on the whole gang of outlaws and bring justice back to the realm. Hmmm... there must be a name for this complex in the DSM IV. I wish I knew it.... I have a feeling that the whitehat is going to get overun by the cavalry, who will take away the star badge and his gun.
Open v. Closed. Darl picked up an IBM ad from a newspaper and agreed with IBM's asssertion that the war is over open and closed. But Darl cleverly did his magician thing and turned it into free versus paid software. He also cast RMS as the enemy of the economic growth of the intellectual property market, going so far as to display a picture of RMS with a quote that "proprietary software is antisocial and should'nt exist" on one side of slide and the $289 billion IP valuation of the software market (in 2007) on the other half, with the quote that "IP is a power tool for economic development" from the WIPO. Sigh... Would someone please explain the history of science to Darl! Darl did add that he had great respect for RMS's ethos and mission, which he characterized as not being done until all software is free. Darl then asked: what happens to society if that $289 billion is zero? It would be bad for the tax base, as well as for the incentive to create more and more software. As one law student mentioned afterwards, what about the billion that IBM has invested in its open source business, and the billion it got back? Does that not count towards the $289 billion figure?
Blustery Challenge to Sam: Darl challenged Sam Palmisano to put his 10,000 patents in the public domain and Darl will do the same. Only Darl doesn't have any patents to release, only code that is secret -- well, the stuff that not in Linux. And all IBM's patents can already be read online. Hmm.
Q&A NOTES
Header Files are a Problem: Darl knew that Linus had said that he wrote 2 of the files, leaving (for Darl) 70 out in the open. Chris Sontag went on to claim that the AT&T/BSDi agreement left three groups of files: those that had to be removed, those that had to have copyright headers affixed to them, and those to which nothing had to be done. Chris claimed that the header files that SCO cites belonged to the middle group, and that SCO could use the DMCA to pursue claims against those who violated the terms of the court agreement. That should be interesting: a sealed court agreement being used to prosecute people who allegedly used existing code which predates the DMCA...
But SAMBA is fine. When asked why they continue to distribute GPL'd software like Samba when they say that the GPL is unconsitutional and against US copyright law, Sontag only said that they will distribute software which they believe has clean IP.
SCO Claims to be Mitigating Damages: Darl claimed that SCO was acting to mitigate damages. It had shown the code in August with "clearly replicated" code under NDA. As a result, Linus said that the code had been removed. (small causality problem there, no?). Darl claimed that SGI also removed code when it had been confronted with the evidence. (that's not what I remember reading in SGI's letter). Darl thenclained that there are millions of lines of infringing code in Linux, and that SCO had provided that code to IBM. And of course, the header files: Chris and Darl then mentioned that SCO had sent out a letter in January, and that the deadline for responding was last Saturday. So they are acting to mitigate damages, at least as far as their confidential agreements with their licensees allows. Right.
Novell as a Nuisance Suit: Darl characterized the suit with Novell as simple and quick, something that should result in a immediate permament injunction to prevent Novell from claiming copyright over Unix. Chris pointed out that all the change of control clauses expired two years from the signing of the agreement, so Novell's claims to own Unix IP are moot. Darl separately (and earlier) explained that Novell was claiming to have a perpetual "license" to use Unix and resell it (giving legitimacy to SuSE), a license they would not need if they owned Unix. Darl claimed Novell was talking out of both sides of its mouth.A Taxomony of their Claims: SCO is pursuing copyright Slander with Novell. It is pursuing breach of contract with IBM, and may pursue straight copyright claims against other parties. SCO is claiming that x% of Linux is OK, and y% is not. They want licenses to use the part that is not okay, and deflected questions about how that IP could be removed from Linux, even if going back to 2.2 would be okay. The only road they want people to see is their IP licensing program.
Sending Vitamins and Spa Treatments to Dennis Ritchie and Ken Thomson: In the context of copyrights and their term of 70 years plus life, Darl made an aside than on analysis reveals a strange mental space. Darl said that they were sending vitamins and spa treatments to Ritchie and Thompson. Then he backtracked and said it was through the money they had paid for Unix. But my nose is itching. To put it in the words of another person I spoke with, why would the thought about keeping the inventors of Unix alive even be in Darl's mental space? Is there some reason that the Unix copyright would be linked to Ritchie and Thompson's lifespan? Isn't it all in AT&T's name? I wonder, and I wonder if anyone else wonders, too....
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12:46 AM EST
Notes from Harvard
by Steve Martin
February 03 2004
But SAMBA is fine. When asked why they continue to distribute GPL'd software like Samba when they say that the GPL is unconsitutional and against US copyright law, Sontag only said that they will distribute software which they believe has clean IP.
It's interesting to go take a look at the product brochure [ http://www.thescogroup.com/images/pdf/unixware/SCO_UW7.1.3_Broch_LetALL.qxd1.pdf ] (warning: the link is likely to change after MyDoom runs its course) for their flagship server product, OpenServer 7.1.3, and read it with an eye toward hypocrisy. Not only are they distributing Samba, but also Sendmail, cdrtools, and Squid, all of which are GPL. That's not all... they're also distributing something called The GNU Toolchain, which (according to the brochure) includes compilers (gcc maybe??), and something else called "the Linux Open Source and GNU Development Tools for LKP". In Darl's universe, the GPL doesn't exist because it's illegal, so they're obviously distributing all this software with no permission whatsoever (point to the document granting permission to distribute this coyprighted software... no? I thought so).
Obviously, they're benefitting greatly from GPL software (not to mention the other open-source products they include, namely Apache, OpenSSH, OpenLDAP, and so forth). I sure wish someone could have nailed him to the wall over this.
As for distributing software which they "believe" has clean IP, isn't that what Linux distributors are doing? Sauce for the goose and all...
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"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"
07:59 AM EST
Notes from Harvard
by PJ
February 03 2004
He said he doesn't care about GPL in the noncommercial space. It's the
GPL in business use that bothers him, because he thinks the GPL will
force his code to be GPLd also.
They truly don't get the GPL thing. The judge likely will. End of Act
Three. Exeunt the Players.
10:34 AM EST
Addendum: Header Files
by John Crowley
February 03 2004
I forgot to mention: Sontag stated that SCO still has a problem with the 2
header files that Linus claimed.
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11:17 AM EST
Addendum: Boxed Sets
by John Crowley
February 03 2004
Sontag said that boxed Linux distros were fair game for lawsuits. He
distinguished between someone using Linux for an educational purpose and a
company that is deriving commercial/economic benefit from Linux. SCO would
likely only come after corporate users, but they did use weasel language and say
that they still could come after anyone -- educational or not -- who uses SCO's
IP.
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11:23 AM EST
Notes from Harvard
by wvhillbilly
February 03 2004
SCO Owns it AllAnd if I remember correctly, they have also on numerous occasions claimed ownership of all Unix patents, despite the fact that patents were explicitly excluded (along with other things) in the APA with Novell.
Darl asserted that SCO owns all rights, title and interest to Unix. SCO owns:* all Unix SysV source code
* all agreements to Unix Vendors
* all SysV copyrights, 8 pages of copyrights, plus amendment a year later,
* all claims violation of Unix Licenses, with over 6000 contracts claims for damages
* all SysV derivative works, "the control of derivate code is owned by SCO"
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What goes around comes around, and it grows as it goes.
11:53 AM EST
Notes from Harvard
by Peter H. Salus
February 03 2004
One of the most irritating things about the
bizarre comments made over the past 6-8 months by
McBride and others at SCOG is the totally weird
version of UNIX history they employ (as well as
their take on Linux history.
I presume they have zero ability to read this
history, but there's lots available -- my book was
but a beginning.
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Peter H. Salus
03:36 PM EST
Copyright 2004