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See Full StoryRecently, a letter from the Linux community to SCO supposedly addressed the concerns SCO has created in the industry about open-source software. However, the letter fails to accomplish its apparent goals and, in my opinion, increases SCO's short-term chances of successfully getting funding from large corporate Linux users. In fact, in reading the letter, I wondered whether it was actually written by someone being paid by SCO, which probably means I'm spending too much time with the open-source software folks and have begun to become as paranoid as they are about secret conspiracies.
Re: Indemnification and Linux Insanity
Posted by: Wogster 2003-10-01 06:02:59 In reply to: Rob Enderle
Indemnification, is a difficult thing to do, because unless you put severe limits on it, you don't have control. If your lawyer allows you to be exposed to legal liability, where you don't have control then your lawyer should be shot, hung, drawn and quartered, disbarred, and fired.
IBM for example can't indemnify Linux because they don't control it, they can contribute to it, but for installation purposes, they simply buy it from soneone else, usually RedHat or Suse, it's like asking IBM to Indemnify Windows.
HP indemnified, but put severe limits on it, for example only versions that come with an HP computer, or versions certified by HP are covered, make any changes, and your not covered. Notice how it's also restricted to SCO, if Joe Blough decides to sue, then your not covered.
Personally I don't see SCO selling many licences, at least not until the courts rule on the IBM and Redhat cases, even if they win, then one of two things will happen:
1) The code involved will be removed and replaced with clean-room implementations that are SCO free, in a very short period of time.
2) Linux will die and a lot of talent will be looking for a new home, probably landing in one of the BSD Unixes.
In either case SCO will not sell many licences. It will also lose whatever friends it still has in the industry, this would not be good for SCO, the share price will drop to the <5 cent level, and someone will buy up the pieces for next to nothing.
If SCO loses then they will need to settle with IBM and Redhat, and that will either force them to give up Unix SysV or to sell it. I wouldn't be surprised if IBM forces them to give it up, and someone like The Open Group ends up with it. This will leave SCO with lots of debt to there lawyers, and no real assets, anyone who has taken accounting 101 can tell you the results here.
W
IBM for example can't indemnify Linux because they don't control it, they can contribute to it, but for installation purposes, they simply buy it from soneone else, usually RedHat or Suse, it's like asking IBM to Indemnify Windows.
HP indemnified, but put severe limits on it, for example only versions that come with an HP computer, or versions certified by HP are covered, make any changes, and your not covered. Notice how it's also restricted to SCO, if Joe Blough decides to sue, then your not covered.
Personally I don't see SCO selling many licences, at least not until the courts rule on the IBM and Redhat cases, even if they win, then one of two things will happen:
1) The code involved will be removed and replaced with clean-room implementations that are SCO free, in a very short period of time.
2) Linux will die and a lot of talent will be looking for a new home, probably landing in one of the BSD Unixes.
In either case SCO will not sell many licences. It will also lose whatever friends it still has in the industry, this would not be good for SCO, the share price will drop to the <5 cent level, and someone will buy up the pieces for next to nothing.
If SCO loses then they will need to settle with IBM and Redhat, and that will either force them to give up Unix SysV or to sell it. I wouldn't be surprised if IBM forces them to give it up, and someone like The Open Group ends up with it. This will leave SCO with lots of debt to there lawyers, and no real assets, anyone who has taken accounting 101 can tell you the results here.
W
Re: Indemnification and Linux Insanity
Posted by: rkhalloran 2003-10-01 08:12:33 In reply to: Wogster
SCO's behavior in this is fairly transparent; they're trying to scare businesses into buying licenses because nobody's interested in buying their actual product. Their claim to 'derivative works' will probably last just long enough for the judge to review the USL v BSD documents and put the whole SysV codebase into public domain. This would explain why they're doing everything possible to drag this out; they're backpedaling about the Red Hat countersuit because it would short-circuit the IBM case. The code they showed off as infringement was in fact BSD code they had no rights to, which shows how well they know the background of their own product. They claim showing the code would get it replaced out, but failing to allow the defendant a good-faith effort to fix the problem reduces the damages they can claim. McBride has said a buyout 'would make this all go away'; I think he was expecting IBM to shut them up with a buyout and he could have opened a nice golden parachute; now SCO's facing the Mongol Horde of IBM's Legal Department and trying to figure out where to run to.
Re: Indemnification and Linux Insanity
Posted by: rkhalloran 2003-10-01 12:39:20 In reply to: rkhalloran
If 'derivative works' fall under SCO's control, then what about the fact that according to Open Group [who actually own the right to the UNIX definition], that OS/390 is technically a UNIX-compatible system because of their POSIX libraries? You think IBM is going to let SCO get a tap into the cash cow that is their bread-and-butter? Not bleeping likely... whatever IBM's legal fees for this are going to run is pocket change by comparison. The fact that they're covering Linux in the bargain is almost an afterthought vs. the potential drain on their mainframe revenues. Think about it...
Re: Indemnification and Linux Insanity
Posted by: bmwood 2003-10-01 05:45:47 In reply to: Rob Enderle
It seems to me you might be overlookong a pertinent fact: IBM does not sell or distribute a version of Linux. So who would they indemnify? Anyone who runs a version of Linux on an IBM system? Does this include anyone who installs a Linux distribution on a Think Pad? Further, for what would they provide an indemnity? Would they indemnify users against IP claims in the kernel - what version and what about modifications made by the user or by the distributor? It seems to me that there are some real practical problems with your position. I don't have any problem with HP providing an indemnity, but I also recognise that it really has little, if any, practical value to the end customer. For example, I have several HP Pavilion systems on which I run Linux derived from various distributions - Red Hat, Suse and even Mandrake. Are my systems covered by the HP indemnity? What am I protected from?
It seems to me that what you suggest is really not practical and I think that is why SCO keeps harping on it - there really isn't any practical way for any vendor -- including SCO itself -- to provide a meaningful indemnity. Further, the noise distracts people from the real issue here - SCO has a legal obligation to minimise any damages caused by IP infringement they claim - i.e. they have a legal obligation to specify precisely what code infringes their intellectual property so that the "infringing" parties can remedy the alleged infringement. They are not meeting this legal duty. If they met their duty under the law, indemnity, by any party, would be unnecessary. That is the key issue here, not whether the various parties in the Linux development and distribution chain offer indemnity.
My tuppence....
Cheers
It seems to me that what you suggest is really not practical and I think that is why SCO keeps harping on it - there really isn't any practical way for any vendor -- including SCO itself -- to provide a meaningful indemnity. Further, the noise distracts people from the real issue here - SCO has a legal obligation to minimise any damages caused by IP infringement they claim - i.e. they have a legal obligation to specify precisely what code infringes their intellectual property so that the "infringing" parties can remedy the alleged infringement. They are not meeting this legal duty. If they met their duty under the law, indemnity, by any party, would be unnecessary. That is the key issue here, not whether the various parties in the Linux development and distribution chain offer indemnity.
My tuppence....
Cheers
Re: Indemnification and Linux Insanity
Posted by: linuxra 2003-09-29 22:25:09 In reply to: Rob Enderle
Mr. Enderle:
Are you now or have you in the past been paid for services by Microsoft or SCO?
Have you had some negative experience with IBM that may cause you to look at that company with suspicion?
Are you now or have you in the past been paid for services by Microsoft or SCO?
Have you had some negative experience with IBM that may cause you to look at that company with suspicion?
Re: Indemnification and Linux Insanity
Posted by: cypherpunks 2003-10-03 14:46:23 In reply to: linuxra
Let me be more direct:
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Mr. Enderle:
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In the interests of full disclosure:
Is Microsoft currently a client of yours right now, and if not, when was the date of the start and end of the last business you did with Microsoft? Also, since Microsoft was a client of your's in the past, does Microsoft currently owe you any money at all? The amount they owe is irrelevant.
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Mr. Enderle:
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In the interests of full disclosure:
Is Microsoft currently a client of yours right now, and if not, when was the date of the start and end of the last business you did with Microsoft? Also, since Microsoft was a client of your's in the past, does Microsoft currently owe you any money at all? The amount they owe is irrelevant.
Re: Indemnification and Linux Insanity
Posted by: RobEnderle 2003-09-30 11:13:46 In reply to: linuxra
SCO has never been a client (can't help but think that is a good thing). Most of the vendors have been clients of mine at one time or another and likely will be again including Microsoft. At this moment they aren't though. I'm an ex-IBM employee, they trained me how to take an initiative like Linux and turn it to our advantage. But I generally suspect any large company. I just know that IBM has a mixed history with this stuff.
HP's indemnification is not worth the paper it is printed on. Just today, I have released some patches for Red Hat's beta kernel, and guess what, HP doesn't cover that. On the other hand, the real friends at Big Blue are all over SCO. That's the best damn indemnification one can get.
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And just to make things clear, SCO is up for a lose-lose. If GPL is invalid, they are copyright infringers for distributing copyrighted works without a valid licence. If GPL is valid, they are copyright infringers for licensing copyrighted works of others under the licence the copyright holders didn't agree to. I like...
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And just to make things clear, SCO is up for a lose-lose. If GPL is invalid, they are copyright infringers for distributing copyrighted works without a valid licence. If GPL is valid, they are copyright infringers for licensing copyrighted works of others under the licence the copyright holders didn't agree to. I like...
Actually you're assuming that the threat will go away when SCO does, that is one huge assumption given how much protected IP is out there. HP did what they could, they can't protect against what you put in the product. Universal indemnification just isn't done by anyone.
If we're talking about some yet undefined threat, well, of course there is always going to be freeloaders like SCO that will try this kind of BS. We'll take those one by one, of course.
As for what HP did, it's useless. What good does it do to anyone when the main feature (open source) of the product isn't there any more with their indemnification? It's just a sales pitch and a pretty obvious one too. IBM have 10 times more integrity, IMHO.
Why are you so hung on this indemnification business anyway? I had a chat to SCO over the phone recently and when I asked them about GPL and modifications, they hung up the phone on me. That's how "rock solid" their position and case is. Please, they are just a bunch of lawyers that think they can get a free lunch on the back of people that actually do something useful for a living. That won't fly, I'm afraid.
As for what HP did, it's useless. What good does it do to anyone when the main feature (open source) of the product isn't there any more with their indemnification? It's just a sales pitch and a pretty obvious one too. IBM have 10 times more integrity, IMHO.
Why are you so hung on this indemnification business anyway? I had a chat to SCO over the phone recently and when I asked them about GPL and modifications, they hung up the phone on me. That's how "rock solid" their position and case is. Please, they are just a bunch of lawyers that think they can get a free lunch on the back of people that actually do something useful for a living. That won't fly, I'm afraid.
Actually, in litigation, a bunch of lawyers like this are dangerous. I do think they are in a mess now though. This is way too complex and they need to keep a lot of balls in the air for this to work. I actually think HP was trying to do the right thing, for a lot of folks I don't think it is worthless. My 6 cents.
Re: Indemnification and Linux Insanity
Posted by: RobEnderle 2003-09-29 18:03:28 In reply to: Rob Enderle
I’ve noticed that a number of folks are looking at the Microsoft license on the box, I’m referring to the new volume license agreement and this clause can be found at:
http://download.microsoft.com/download/6/8/9/68964284-864d-4a6d-aed9-f2c1f8f23e14/mba_v6.doc
Last March, or before the stuff hit the fan, Microsoft removed the monitary limits to their indemnification (when you look at the old agreement vs. the new, you’ll see the $5000 limit no longer applies to this kind of problem).
Also LinuxWorld confirmed that HP’s indemnification is real as well you can see this at the derivative article site under the talk backs (James Turner):
http://www.linuxworld.com/story/34237.htm
http://download.microsoft.com/download/6/8/9/68964284-864d-4a6d-aed9-f2c1f8f23e14/mba_v6.doc
Last March, or before the stuff hit the fan, Microsoft removed the monitary limits to their indemnification (when you look at the old agreement vs. the new, you’ll see the $5000 limit no longer applies to this kind of problem).
Also LinuxWorld confirmed that HP’s indemnification is real as well you can see this at the derivative article site under the talk backs (James Turner):
http://www.linuxworld.com/story/34237.htm
Re: Indemnification and Linux Insanity
Posted by: EdCogburn 2003-10-02 03:44:08 In reply to: RobEnderle
Concerning MS's license, who cares? Their software is proprietary, they don't have to worry about people digging through their source code to find stolen software because no one can get at their source code.
Indemnification is a red herring. HP's indemnity is real only for as long as you don't change their Linux or add stuff that doesn't come from HP to it. That kills the entire advantage of open source software, which is precisely why you and others are bringing it up. And lets not forget that IBM doesn't distribute their own version of Linux so what exactly are they supposed to indemnify?
Indemnification is a red herring. HP's indemnity is real only for as long as you don't change their Linux or add stuff that doesn't come from HP to it. That kills the entire advantage of open source software, which is precisely why you and others are bringing it up. And lets not forget that IBM doesn't distribute their own version of Linux so what exactly are they supposed to indemnify?
Re: Indemnification and Linux Insanity
Posted by: cypherpunks 2003-10-03 15:39:32 In reply to: EdCogburn
Ed, you don't need source code to determine that the underlying code is equivalent or stolen. It's more difficult, but not that much more difficult. You'd have the same signatures for function entries, nearly the same stack usage, and what is often the tell tale sign - the same bugs.
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You are right however, indemnification is a red herring. Somehow the software industry managed to get along without it until now for the last 30 years. It would be interesting though for Microsoft to be liable for all their security vulnerabilities.
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You are right however, indemnification is a red herring. Somehow the software industry managed to get along without it until now for the last 30 years. It would be interesting though for Microsoft to be liable for all their security vulnerabilities.
Re: Indemnification and Linux Insanity
Posted by: btobin 2003-09-29 16:45:37 In reply to: Rob Enderle
> In fact, in reading the letter, I wondered
> whether it was actually written by someone
> being paid by SCO, which probably means I'm
> spending too much time with the open-source
> software folks and have begun to become as
> paranoid as they are about secret conspiracies.
This is clever. You manage to smear the authors of the letter without actually addressing any of their claims (not surprising, since they're unassailable), and at the same time you mount a preemptive defense against the charge that you yourself are a paid shill for SCO/Microsoft-- which you clearly are.
Nice try.
> whether it was actually written by someone
> being paid by SCO, which probably means I'm
> spending too much time with the open-source
> software folks and have begun to become as
> paranoid as they are about secret conspiracies.
This is clever. You manage to smear the authors of the letter without actually addressing any of their claims (not surprising, since they're unassailable), and at the same time you mount a preemptive defense against the charge that you yourself are a paid shill for SCO/Microsoft-- which you clearly are.
Nice try.
Re: Indemnification and Linux Insanity
Posted by: RobEnderle 2003-09-29 19:24:13 In reply to: btobin
Actually there was no attempt to "smear" the authors. This letter, in my opinion, was just a mistake and one often made by inexperienced people. They lost track of the goal in their need to strike back at SCO and, were I SCO, I'd like them to write more letters like this. I'm not and now know a lot of really great OSS people (a very large number) one of which asked me to address this issue. I find it interesting that so many people assume that just because I don't agree with something that the Linux folks have done I must be a "Microsoft Shill", trust me when I say that they too would actually appreciate more letters like this. It makes their stuff look so much safer in comparison.
As yet SCO have offered no evidence of anything, no basis on which to charge end users for anything, no legal proceedings based on *any* copyright infringement and have admitted that IBM owns the copyright to the code they have placed in Linux. The outcome of the case is many years (probably a couple of roll-outs of new systems for most companies)
SCO have shipped Linux code under the GPL for over two years. Either they are guilty of multiple instances of copyright theft or they have accepted the terms of the GPL for the software they have shipped, they have flatly refused to mitigate any losses they might be incurring, instead offering no material evidence of any of their claims.
So it seems to me SCO needs urgently to either indemnify any and all individuals that have SCO, or Caldera products from legal action in respect of SCOs (perhaps inadvertant) mass copyright infringements- or agree that they accept the terms of the GPL.
So Mr Enderle, are we going to see you press for SCO to offer indemnity to all their Linux customers- since there is far more evidence of actual infringement here - both the code and statements disavowing the GPL from SCO are public - it seems a vastly more urgent issue. Currently it seems only to be the forbearance of the Linux Kernel Hackers that are preventing the death by a thousand writs that SCO's customers are facing.
SCO have shipped Linux code under the GPL for over two years. Either they are guilty of multiple instances of copyright theft or they have accepted the terms of the GPL for the software they have shipped, they have flatly refused to mitigate any losses they might be incurring, instead offering no material evidence of any of their claims.
So it seems to me SCO needs urgently to either indemnify any and all individuals that have SCO, or Caldera products from legal action in respect of SCOs (perhaps inadvertant) mass copyright infringements- or agree that they accept the terms of the GPL.
So Mr Enderle, are we going to see you press for SCO to offer indemnity to all their Linux customers- since there is far more evidence of actual infringement here - both the code and statements disavowing the GPL from SCO are public - it seems a vastly more urgent issue. Currently it seems only to be the forbearance of the Linux Kernel Hackers that are preventing the death by a thousand writs that SCO's customers are facing.
Where have I even suggested that anyone buy anything from SCO? Who in their right mind would buy from a company under this kind of litigation cloud? Indemnification is meaningless from them, they don't have the resources to back it up.
Re: Indemnification and Linux Insanity
Posted by: cypherpunks 2003-10-05 14:16:49 In reply to: RobEnderle
<<Where have I even suggested that anyone buy anything from SCO? Who in their right mind would buy from a company under this kind of litigation cloud? Indemnification is meaningless from them, they don't have the resources to back it up.>>
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When have you ever suggested that anybody ignore SCO? When have you ever suggested that SCO didn't have a case? I've seen you state that SCO had a 55% - 65% of victory. When have you criticized SCO for anything?
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When have you ever suggested that anybody ignore SCO? When have you ever suggested that SCO didn't have a case? I've seen you state that SCO had a 55% - 65% of victory. When have you criticized SCO for anything?
Re: Indemnification and Linux Insanity
Posted by: tungtung 2003-09-29 16:33:55 In reply to: Rob Enderle
By the way, I believe this is the "insane" letter Mr. Enderle is referring to. You might read it for yourselves and consider Mr. Enderle's comments in light of the actual letter. You'll notice that I have posted the letter with the permission of the copyright owner; verbatim copying of the letter is allowed. (Also, I'm part of the Groklaw community and thus one of the authors.)
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By the way, the document at the Inquirer to which the letter refers is at:
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http://www.theinquirer.net/?article=11649
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You can find the original letter, which contains additional html links, at:
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http://www.groklaw.com
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Here's the letter. Make your own judgements.
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Alex
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Groklaw's Open Letter to SCO's CEO Darl McBride
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Dear Mr. McBride,
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Recently you wrote an "open letter to the open source community" published September 9, 2003 by LinuxWorld. This reply is from a group within the open source/free software community. Because you addressed your letter to our community-at-large, we thought we should answer you ourselves.
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Our community isn't organized hierarchically like a corporation, so it has no CEO or overall leader in that sense, except that Linus Torvalds leads Linux kernel development and Richard Stallman leads the GNU Project and the Free Software Foundation (FSF). We have written this letter together on the website, Groklaw, which is a research and news site currently dedicated to covering developments in the news about your company.
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Quite a number in the group are software engineers, including contributors to the Linux kernel. Others are proprietors of Linux-based businesses or executives or employees of Linux-related businesses. A few of us are lawyers, one is a paralegal, one a stockbroker, at least one is a physicist, a couple are journalists, one is a retired policeman, another a retired truck driver, others are in or have been in the military, and some work or have worked in government. We also have experienced UNIX programmers among us who personally witnessed the history of UNIX since its inception, participated in its development, and know the software well. One of us is a non-technical grandmother who installed GNU/Linux herself recently and fell in love with the software. We are a large, international and varied group of people, which is appropriate because GNU/Linux is developed and used worldwide and the open source community to which you directed your letter is both global and diverse.
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VIOLATIONS OF THE GPL AND COPYRIGHT LAW
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Our first purpose in writing to you is to draw to your attention that there are consequences to violating the GNU General Public License, the GPL.
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You have continued to distribute the Linux kernel, despite alleging that it contains infringing source code. Simultaneously, you are attempting to compel purchase of "Linux Intellectual Property" licenses for binary-only use, the terms of which are incompatible with freedoms granted under the GPL.
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According to the GPL, any violation of its license terms automatically and immediately terminates your permission to modify or distribute the software or derivative works. Note the wording of the GPL:
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"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. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance."
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"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, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it."
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Releasing software under the GPL is not the same as releasing it into the public domain. Authors retain their copyrights to software licensed under the GPL. Even when authors assign their copyrights to someone else, such as to the Free Software Foundation, the copyrights remain valid, but with the new owner. Therefore, subsequent to termination of your permissions under the GPL, you are in the unhappy position of violating the copyrights of the software authors, if you continue to distribute their software. Under copyright law, you are not allowed to distribute at all without their permission -- and they have chosen to grant that permission only by means of the GPL.
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YOUR INVOICES WILL PROVOKE LEGAL ACTIONS
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With regard to the invoices you have said you will mail out by October 15, we caution you that we believe that any such action will expose you to civil lawsuits under both federal and state consumer protection laws, as well as to possible criminal prosecution and penalties should state and federal agencies, attorneys general, and district attorneys decide to get involved, which we fully intend to ask them to do upon receipt of any invoice from you.
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For just one example of state consumer protection laws, we suggest that you read Article 22-A of New York's General Business Law, Sections 349 and 350. Similar laws are on the books in other states. The Linux kernel developers also have copyright law to rely upon to protect their rights. Linux-based businesses may also avail themselves of other commercial laws, such as trade libel law.
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Should we receive invoices from you, we will initiate civil actions under the anti-fraud and consumer protection statutes wherever we live, according to our respective circumstances. We also intend to contact our state attorneys general to request that they seek criminal as well as civil penalties against you, in addition to injunctive relief. In addition, we will file complaints with the FTC and other federal and state agencies, as appropriate. Some individuals have already sent letters to legislators in their respective states and in Washington, DC.
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We purchased GNU/Linux software in good faith, and we chose it precisely because it is released under the GPL. We will not accept your attempt to charge us a second time for a product that we have already bought and paid for, most of us from vendors other than yourself. Furthermore, we accept no license other than the GPL for GNU/Linux software. For one reason, it is the permission to modify our software that we treasure. Here is how the GPL FAQ explains the value of being able to modify software: "A crucial aspect of free software is that users are free to cooperate. It is absolutely essential to permit users who wish to help each other to share their bug fixes and improvements with other users." This is one key to the justly renowned stability and security of GNU/Linux software, and we have no intention of reverting back to the Dark Ages of binary-only software permissions, having already made the conscious and informed decision to escape from and avoid such like the plague.
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WE DO BELIEVE IN COPYRIGHT LAW
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Despite the false impression you attempt to paint in your letter -- that we are a lawless community that doesn't respect copyright law -- we wish to inform you that we do believe in copyright law. It is the legal foundation upon which the GPL is built, and we rely upon it to protect our rights. If the Linux kernel developers didn't believe in copyright, they would have released their software into the public domain instead of choosing to license it under the GPL.
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You are required by law to respect the Linux kernel authors' copyrights, as well as the license they chose to use, the GPL. It is hypocritical to complain of alleged violations of your copyrights and licenses while at the same time disregarding the equivalent legal rights of others.
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YOU HAVE SHOWN US NO INFRINGING SOURCE CODE
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You have refused to show us, much less prove, any infringing source code. If you showed source code that proved to be infringing, it would be immediately removed. Linus Torvalds, Richard Stallman, and the FSF's attorney, Eben Moglen, have each told you so repeatedly as men of honor. You refuse to let that happen. Why? It appears to us it is because you have no infringing source code to show.
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Your most recently filed 10Q shows your UNIX business declining, even as Linux continues to grow in market acceptance. If you are refusing to show the source code to prevent its removal because you wish to charge a perpetual toll, in effect riding on the coattails of the more successful GNU/Linux software, that is a shameful tactic. You cannot compel Linux developers to retain your source code, even if any infringing code existed. An alleged infringement is curable by removing the infringing source code. If you can identify any infringing source code, please do so, prove it is infringing, and let us remove it, because we surely do not want it.
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Even more shameful would be to try to destroy, co-opt, or make proprietary, the labor of thousands of good-hearted volunteers who did not volunteer to work for you, do not wish to be exploited by you for your monetary gain, and have already chosen to release their creative work under the GPL.
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If your concern is that evidence will be removed before your claims against IBM and its counterclaims against you can be heard in court, that is a baseless concern, because the Linux source code is and always will be publicly available for review by any court. Secrecy is not an option under copyright law. If you make allegations of copyright infringement, you must offer proof.
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We do not need or want your legacy UNIX source code. It would be a violation of the GPL to accept proprietary source code into the Linux kernel. If there is proprietary source code in the kernel, we want it removed just as badly as you do, perhaps more so, because we believe in the GPL. Just because people will not walk through your front door to buy your software, you have no right to compel them to pay you through the back door for what they did not voluntarily choose to buy. You must, therefore, try to find a viable business model without our compelled participation.
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Any claims you may have against IBM are between you and IBM. It is a contractual dispute to which we are not parties. If you have any valid contractual claims, they will be settled in a court of law, but your remedies in that dispute lie with IBM and IBM alone, not with Linux users. Even if some misappropriation were to be established, you cannot collect twice for the same transgression. Further, we note that to date you have filed no copyright claims against either IBM or Red Hat.
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SOURCE CODE CAN BE BOTH IDENTICAL AND LEGAL -- THE BSD CONNECTION
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Since the beginning of this year, you have claimed that there is infringing source code taken from your version of UNIX and illegally donated to Linux. But when two examples were shown at SCOForum, neither supported your allegations. For six months, we have listened to analysts say that some source code appeared similar, if not identical. Yet what both they and you failed to investigate and determine is where that source code originated, how and by whom it was added to the software at issue, to whom it now belongs, and who is allowed to use it.
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There is BSD source code in Linux which is legally there, and it will, of course, be identical to or similar to BSD source code in your software. The BSDi lawsuit revealed that the AT&T source codebase includes a great deal of BSD source code. Caldera itself also later released "Ancient UNIX" source code under a BSD-like license. Consequently SysV contains substantial amounts of source code that SCO and others have already licensed for use and that the open source/free software community may legally use.
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WE POLICE SOURCE CODE EFFECTIVELY -- DO YOU?
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It took only a day or so for the source code shown at SCOForum to begin to be identified by members of the open source community. If we do not police source code effectively, as you claim, why were they able to so quickly identify the code? You, in contrast, had no idea where that source code came from, or to whom it belonged, or you surely would not have used it to attempt to prove "infringement" of "your" source code. The evidence indicates it is your due diligence system that is broken, not ours.
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If the legal departments of corporations represent to Linus Torvalds that they have ownership rights to source code they donate, what more can reasonably be expected? Do you have methods in place to prevent GPL source code from being improperly inserted into your proprietary software? Would you be willing to allow us to check for such violations? We particularly wish to check your Linux Kernel Personality (LKP) source code. We suspect that there may be GPL source code taken from the Linux kernel and used in LKP without authorization, and we challenge you to prove this has not happened by showing us your LKP source code, throughout its complete development history to date.
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Any proprietary software company can police its own source code in Linux by checking the Linux source code. The Linux kernel is open to the public. If you see any source code that you believe is yours, you have only to speak up, and it will be immediately removed, upon confirmation that it is infringing. That is what you should have done. It's a superior feature in the open source method that all you need to do is your own due diligence. Any interested party can verify that no copyright infringements are taking place, simply by looking at the published source code. This creates strong incentives for honesty and provides far greater protection for copyright holders than your proprietary system, where source code can be misappropriated and hidden and no one can check for it, short of a lawsuit. Perhaps that is why proprietary software companies are so often locked in legal battles, something you rarely see in the open source / free software community.
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With regard to broken systems, how could it happen that while working with the Linux kernel source code for years -- and your company did -- you never noticed any infringing source code? And how do you explain that you released the allegedly infringing source code in your own distributions of Linux for years without noticing it was in there?
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If Linux did contain infringing UNIX source code that you failed to notice for years, or noticed but did nothing to prevent, despite the fact that the Linux source code was freely available at any time for your review, it raises questions about your internal processes and procedures for protecting your copyrights rather than demonstrating any purported "breakdown" in the open source methodology.
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INDEMNIFICATION IS A RED HERRING
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Anyone considering surreptitiously inserting proprietary software source code into Linux knows they would be quickly discovered and identified by name. That is your indemnification and your protection. We believe our system for policing source code is far more exacting and successful than your own.
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On the subject of indemnification, we note that the software license which you propose to sell does not offer indemnification from lawsuits brought by other companies. And we think we should inform you warranties are permitted under the GPL: "1. . . .You may charge a fee for the physical act of transferring a copy, and you may at your option offer warranty protection in exchange for a fee." We do not feel we need it; the open source method protects us sufficiently, but it is certainly negotiable if we wish to pay for it.
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Proprietary software companies regularly file lawsuits against each other for copyright infringement, patent and trademark violations. Microsoft has been found guilty recently in several cases, but despite the fact that the GNU Project was begun in 1984 and Linus Torvalds began the Linux kernel in 1991, there has never been a claim of copyright infringement that we know of in all those years, let alone a finding of guilt. The record shows which method has done a better job of policing source code, which reveals that your call for indemnification is, to put it bluntly, FUD.
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WE RESPECT THE LAW
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With regard to your talk of having experienced a DDoS attack and your request that we aggressively police the community, your request is like us asking you to police Microsoft to ensure it never again breaks antitrust law or never again violates anyone's patents, trademarks, or copyrights.
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Just because you are both proprietary software companies, it doesn't follow that you can control what Microsoft does or should be criticized as if you condoned their actions just because you are in the same proprietary camp. Whether it is individuals or companies that break a law, it is wrong, but it reflects only on the individual perpetrator. We expect you to make that distinction for us, as we do for you.
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There is a legal process for such matters. Not everyone accepts as established fact that there was an attack. The doubt is based on the fact that your employees were quoted as saying that reports of an attack were untrue and that you took your servers down for maintenance yourself and then had trouble getting them back up again. We observed that the "attack" kept business hours, Utah time, for much of that week. If the information your employees provided was false and there was in fact a network denial of service attack on your servers, we naturally abhor such behavior. Your implication that we would feel otherwise is deeply insulting and offensive.
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We would think, however, that a capable information technology company that sells web services software would have the technical know-how to handle a DDoS attack, if that is really what happened. Most such companies do handle them without being brought to their knees for a week. We are glad that you say you have since learned technical steps you can take to protect yourself in the future.
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WHO MAKES UP THE OPEN SOURCE COMMUNITY TODAY?
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Kindly bring up-to-date your concept of the people and organizations that make up the open source community. Your letter attempted to portray us as a counter-cultural fringe element. On the contrary, the truth is that our community is very much in the mainstream already and includes many of the largest and most successful businesses today, including IBM, Red Hat, Merrill Lynch, Lucent Technologies, Unilever, Verisign, Dell, Amazon, Google, Dreamworks, Los Alamos National Laboratory, Oak Ridge National Laboratory, the US Department of Defense, the US military, and many other federal, state, and local governments and governmental agencies, including, by the way, the town of St. George, Utah.
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You can read a list of companies and governmental agencies that use GNU/Linux at Linux International's "Linux Success Stories" webpage . The Linux Documentation Project also has such a webpage, called "Powered by Linux!", as does the Linux in Business website. The Linux Counter calculates there are currently 18 million users of GNU/Linux software.
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With so many businesses, educational institutions, governmental organizations, and individual users switching to our software, we must be doing something right.
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LINUX ALREADY HAS A BUSINESS MODEL
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Your inability to make your Linux business a success, while unfortunate for you, parallels your company's failure to make your UNIX business a success. Perhaps the problem isn't Linux, the GPL, or the open source business model.
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Economist Amy Wohl is of the opinion that "The Open Source Community Has a Business Model" and one that is successful. Ms. Wohl is an analyst who has been covering IT for nearly 30 years and who currently comments on the commercialization of new and emerging technology. Here are her comments, which we include with her kind permission:
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"As an economist, let me assure you that Open Source has a business model. It simply isn't one that a traditional company like SCO, which expects to be paid for source code, can figure out. There are still lots of companies that can charge for source code, but only when the source code they are offering is valued by customers because it is unique or convenient or offers other recognized value. Other companies (IBM is a good example) charge for their Linux-compatible middleware source code, but honor the Open Source community by supporting it with technical and financial assistance and by strongly supporting the open standards that permit customers to choose to use Open Source code when they prefer it and purchased source code when they find it, for whatever reason, more valuable. Then, as many posters have noted, IBM extends its business model into the future by providing services to help customers plan, design, implement, and customize whatever combinations of hardware, open source, and proprietary code the customer prefers.
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"That is the new business model and it seems to be a very successful one."
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DUAL LICENSING IS AN OPTION
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We suggest that you ask your attorneys to explain the Lesser General Public License to you . If they are not familiar with the LGPL, contact the Free Software Foundation, and they can help you to resolve your misunderstanding and confusion about the GPL and how it works and can explain to you how the LGPL can help your business to thrive, should you insist on continuing with the old proprietary software business model. Companies such as MySQL distribute software simultaneously under both open source and proprietary licenses, a practice that is acceptable, if not ideal, under the GPL.
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It is not a violation of the GPL to sell software released under that license. As the GPL FAQ points out, "The right to sell copies is part of the definition of free software." The "free" in free software refers to freedom, not that you can get it gratis. Many of us have paid for our free software, simply because it's more convenient than downloading it or as a way to thank the wonderful folks who developed and shared it with the world. If you're looking for a successful business model, you might consider the tried and true model of satisfied customers.
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We have prepared a research document with links to evidence supporting our position and other resources that you may find helpful, including information about the GPL and the LGPL and how they work. The Inquirer is making our research document available online. We hope it will help you understand our position better and prove a useful resource to you and others interested in this controversy. We also believe it demonstrates that we have right on our side and that we will win.
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Thank you for writing to us. We appreciate the opportunity to answer your letter. We trust you will give our response due consideration. Thank you for your time.
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Sincerely,
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Members of The Open Source/Free Software Community at Groklaw
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Copyright © Groklaw, 2003
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Verbatim copying of this letter is permitted in any medium, provided this notice is preserved.
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By the way, the document at the Inquirer to which the letter refers is at:
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http://www.theinquirer.net/?article=11649
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You can find the original letter, which contains additional html links, at:
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http://www.groklaw.com
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Here's the letter. Make your own judgements.
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Alex
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Groklaw's Open Letter to SCO's CEO Darl McBride
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Dear Mr. McBride,
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Recently you wrote an "open letter to the open source community" published September 9, 2003 by LinuxWorld. This reply is from a group within the open source/free software community. Because you addressed your letter to our community-at-large, we thought we should answer you ourselves.
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Our community isn't organized hierarchically like a corporation, so it has no CEO or overall leader in that sense, except that Linus Torvalds leads Linux kernel development and Richard Stallman leads the GNU Project and the Free Software Foundation (FSF). We have written this letter together on the website, Groklaw, which is a research and news site currently dedicated to covering developments in the news about your company.
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Quite a number in the group are software engineers, including contributors to the Linux kernel. Others are proprietors of Linux-based businesses or executives or employees of Linux-related businesses. A few of us are lawyers, one is a paralegal, one a stockbroker, at least one is a physicist, a couple are journalists, one is a retired policeman, another a retired truck driver, others are in or have been in the military, and some work or have worked in government. We also have experienced UNIX programmers among us who personally witnessed the history of UNIX since its inception, participated in its development, and know the software well. One of us is a non-technical grandmother who installed GNU/Linux herself recently and fell in love with the software. We are a large, international and varied group of people, which is appropriate because GNU/Linux is developed and used worldwide and the open source community to which you directed your letter is both global and diverse.
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VIOLATIONS OF THE GPL AND COPYRIGHT LAW
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Our first purpose in writing to you is to draw to your attention that there are consequences to violating the GNU General Public License, the GPL.
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You have continued to distribute the Linux kernel, despite alleging that it contains infringing source code. Simultaneously, you are attempting to compel purchase of "Linux Intellectual Property" licenses for binary-only use, the terms of which are incompatible with freedoms granted under the GPL.
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According to the GPL, any violation of its license terms automatically and immediately terminates your permission to modify or distribute the software or derivative works. Note the wording of the GPL:
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"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. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance."
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"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, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it."
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Releasing software under the GPL is not the same as releasing it into the public domain. Authors retain their copyrights to software licensed under the GPL. Even when authors assign their copyrights to someone else, such as to the Free Software Foundation, the copyrights remain valid, but with the new owner. Therefore, subsequent to termination of your permissions under the GPL, you are in the unhappy position of violating the copyrights of the software authors, if you continue to distribute their software. Under copyright law, you are not allowed to distribute at all without their permission -- and they have chosen to grant that permission only by means of the GPL.
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YOUR INVOICES WILL PROVOKE LEGAL ACTIONS
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With regard to the invoices you have said you will mail out by October 15, we caution you that we believe that any such action will expose you to civil lawsuits under both federal and state consumer protection laws, as well as to possible criminal prosecution and penalties should state and federal agencies, attorneys general, and district attorneys decide to get involved, which we fully intend to ask them to do upon receipt of any invoice from you.
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For just one example of state consumer protection laws, we suggest that you read Article 22-A of New York's General Business Law, Sections 349 and 350. Similar laws are on the books in other states. The Linux kernel developers also have copyright law to rely upon to protect their rights. Linux-based businesses may also avail themselves of other commercial laws, such as trade libel law.
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Should we receive invoices from you, we will initiate civil actions under the anti-fraud and consumer protection statutes wherever we live, according to our respective circumstances. We also intend to contact our state attorneys general to request that they seek criminal as well as civil penalties against you, in addition to injunctive relief. In addition, we will file complaints with the FTC and other federal and state agencies, as appropriate. Some individuals have already sent letters to legislators in their respective states and in Washington, DC.
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We purchased GNU/Linux software in good faith, and we chose it precisely because it is released under the GPL. We will not accept your attempt to charge us a second time for a product that we have already bought and paid for, most of us from vendors other than yourself. Furthermore, we accept no license other than the GPL for GNU/Linux software. For one reason, it is the permission to modify our software that we treasure. Here is how the GPL FAQ explains the value of being able to modify software: "A crucial aspect of free software is that users are free to cooperate. It is absolutely essential to permit users who wish to help each other to share their bug fixes and improvements with other users." This is one key to the justly renowned stability and security of GNU/Linux software, and we have no intention of reverting back to the Dark Ages of binary-only software permissions, having already made the conscious and informed decision to escape from and avoid such like the plague.
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WE DO BELIEVE IN COPYRIGHT LAW
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Despite the false impression you attempt to paint in your letter -- that we are a lawless community that doesn't respect copyright law -- we wish to inform you that we do believe in copyright law. It is the legal foundation upon which the GPL is built, and we rely upon it to protect our rights. If the Linux kernel developers didn't believe in copyright, they would have released their software into the public domain instead of choosing to license it under the GPL.
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You are required by law to respect the Linux kernel authors' copyrights, as well as the license they chose to use, the GPL. It is hypocritical to complain of alleged violations of your copyrights and licenses while at the same time disregarding the equivalent legal rights of others.
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YOU HAVE SHOWN US NO INFRINGING SOURCE CODE
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You have refused to show us, much less prove, any infringing source code. If you showed source code that proved to be infringing, it would be immediately removed. Linus Torvalds, Richard Stallman, and the FSF's attorney, Eben Moglen, have each told you so repeatedly as men of honor. You refuse to let that happen. Why? It appears to us it is because you have no infringing source code to show.
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Your most recently filed 10Q shows your UNIX business declining, even as Linux continues to grow in market acceptance. If you are refusing to show the source code to prevent its removal because you wish to charge a perpetual toll, in effect riding on the coattails of the more successful GNU/Linux software, that is a shameful tactic. You cannot compel Linux developers to retain your source code, even if any infringing code existed. An alleged infringement is curable by removing the infringing source code. If you can identify any infringing source code, please do so, prove it is infringing, and let us remove it, because we surely do not want it.
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Even more shameful would be to try to destroy, co-opt, or make proprietary, the labor of thousands of good-hearted volunteers who did not volunteer to work for you, do not wish to be exploited by you for your monetary gain, and have already chosen to release their creative work under the GPL.
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If your concern is that evidence will be removed before your claims against IBM and its counterclaims against you can be heard in court, that is a baseless concern, because the Linux source code is and always will be publicly available for review by any court. Secrecy is not an option under copyright law. If you make allegations of copyright infringement, you must offer proof.
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We do not need or want your legacy UNIX source code. It would be a violation of the GPL to accept proprietary source code into the Linux kernel. If there is proprietary source code in the kernel, we want it removed just as badly as you do, perhaps more so, because we believe in the GPL. Just because people will not walk through your front door to buy your software, you have no right to compel them to pay you through the back door for what they did not voluntarily choose to buy. You must, therefore, try to find a viable business model without our compelled participation.
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Any claims you may have against IBM are between you and IBM. It is a contractual dispute to which we are not parties. If you have any valid contractual claims, they will be settled in a court of law, but your remedies in that dispute lie with IBM and IBM alone, not with Linux users. Even if some misappropriation were to be established, you cannot collect twice for the same transgression. Further, we note that to date you have filed no copyright claims against either IBM or Red Hat.
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SOURCE CODE CAN BE BOTH IDENTICAL AND LEGAL -- THE BSD CONNECTION
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Since the beginning of this year, you have claimed that there is infringing source code taken from your version of UNIX and illegally donated to Linux. But when two examples were shown at SCOForum, neither supported your allegations. For six months, we have listened to analysts say that some source code appeared similar, if not identical. Yet what both they and you failed to investigate and determine is where that source code originated, how and by whom it was added to the software at issue, to whom it now belongs, and who is allowed to use it.
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There is BSD source code in Linux which is legally there, and it will, of course, be identical to or similar to BSD source code in your software. The BSDi lawsuit revealed that the AT&T source codebase includes a great deal of BSD source code. Caldera itself also later released "Ancient UNIX" source code under a BSD-like license. Consequently SysV contains substantial amounts of source code that SCO and others have already licensed for use and that the open source/free software community may legally use.
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WE POLICE SOURCE CODE EFFECTIVELY -- DO YOU?
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It took only a day or so for the source code shown at SCOForum to begin to be identified by members of the open source community. If we do not police source code effectively, as you claim, why were they able to so quickly identify the code? You, in contrast, had no idea where that source code came from, or to whom it belonged, or you surely would not have used it to attempt to prove "infringement" of "your" source code. The evidence indicates it is your due diligence system that is broken, not ours.
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If the legal departments of corporations represent to Linus Torvalds that they have ownership rights to source code they donate, what more can reasonably be expected? Do you have methods in place to prevent GPL source code from being improperly inserted into your proprietary software? Would you be willing to allow us to check for such violations? We particularly wish to check your Linux Kernel Personality (LKP) source code. We suspect that there may be GPL source code taken from the Linux kernel and used in LKP without authorization, and we challenge you to prove this has not happened by showing us your LKP source code, throughout its complete development history to date.
|
Any proprietary software company can police its own source code in Linux by checking the Linux source code. The Linux kernel is open to the public. If you see any source code that you believe is yours, you have only to speak up, and it will be immediately removed, upon confirmation that it is infringing. That is what you should have done. It's a superior feature in the open source method that all you need to do is your own due diligence. Any interested party can verify that no copyright infringements are taking place, simply by looking at the published source code. This creates strong incentives for honesty and provides far greater protection for copyright holders than your proprietary system, where source code can be misappropriated and hidden and no one can check for it, short of a lawsuit. Perhaps that is why proprietary software companies are so often locked in legal battles, something you rarely see in the open source / free software community.
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With regard to broken systems, how could it happen that while working with the Linux kernel source code for years -- and your company did -- you never noticed any infringing source code? And how do you explain that you released the allegedly infringing source code in your own distributions of Linux for years without noticing it was in there?
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If Linux did contain infringing UNIX source code that you failed to notice for years, or noticed but did nothing to prevent, despite the fact that the Linux source code was freely available at any time for your review, it raises questions about your internal processes and procedures for protecting your copyrights rather than demonstrating any purported "breakdown" in the open source methodology.
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INDEMNIFICATION IS A RED HERRING
|
Anyone considering surreptitiously inserting proprietary software source code into Linux knows they would be quickly discovered and identified by name. That is your indemnification and your protection. We believe our system for policing source code is far more exacting and successful than your own.
|
On the subject of indemnification, we note that the software license which you propose to sell does not offer indemnification from lawsuits brought by other companies. And we think we should inform you warranties are permitted under the GPL: "1. . . .You may charge a fee for the physical act of transferring a copy, and you may at your option offer warranty protection in exchange for a fee." We do not feel we need it; the open source method protects us sufficiently, but it is certainly negotiable if we wish to pay for it.
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Proprietary software companies regularly file lawsuits against each other for copyright infringement, patent and trademark violations. Microsoft has been found guilty recently in several cases, but despite the fact that the GNU Project was begun in 1984 and Linus Torvalds began the Linux kernel in 1991, there has never been a claim of copyright infringement that we know of in all those years, let alone a finding of guilt. The record shows which method has done a better job of policing source code, which reveals that your call for indemnification is, to put it bluntly, FUD.
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WE RESPECT THE LAW
|
With regard to your talk of having experienced a DDoS attack and your request that we aggressively police the community, your request is like us asking you to police Microsoft to ensure it never again breaks antitrust law or never again violates anyone's patents, trademarks, or copyrights.
|
Just because you are both proprietary software companies, it doesn't follow that you can control what Microsoft does or should be criticized as if you condoned their actions just because you are in the same proprietary camp. Whether it is individuals or companies that break a law, it is wrong, but it reflects only on the individual perpetrator. We expect you to make that distinction for us, as we do for you.
|
There is a legal process for such matters. Not everyone accepts as established fact that there was an attack. The doubt is based on the fact that your employees were quoted as saying that reports of an attack were untrue and that you took your servers down for maintenance yourself and then had trouble getting them back up again. We observed that the "attack" kept business hours, Utah time, for much of that week. If the information your employees provided was false and there was in fact a network denial of service attack on your servers, we naturally abhor such behavior. Your implication that we would feel otherwise is deeply insulting and offensive.
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We would think, however, that a capable information technology company that sells web services software would have the technical know-how to handle a DDoS attack, if that is really what happened. Most such companies do handle them without being brought to their knees for a week. We are glad that you say you have since learned technical steps you can take to protect yourself in the future.
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WHO MAKES UP THE OPEN SOURCE COMMUNITY TODAY?
|
Kindly bring up-to-date your concept of the people and organizations that make up the open source community. Your letter attempted to portray us as a counter-cultural fringe element. On the contrary, the truth is that our community is very much in the mainstream already and includes many of the largest and most successful businesses today, including IBM, Red Hat, Merrill Lynch, Lucent Technologies, Unilever, Verisign, Dell, Amazon, Google, Dreamworks, Los Alamos National Laboratory, Oak Ridge National Laboratory, the US Department of Defense, the US military, and many other federal, state, and local governments and governmental agencies, including, by the way, the town of St. George, Utah.
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You can read a list of companies and governmental agencies that use GNU/Linux at Linux International's "Linux Success Stories" webpage . The Linux Documentation Project also has such a webpage, called "Powered by Linux!", as does the Linux in Business website. The Linux Counter calculates there are currently 18 million users of GNU/Linux software.
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With so many businesses, educational institutions, governmental organizations, and individual users switching to our software, we must be doing something right.
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LINUX ALREADY HAS A BUSINESS MODEL
|
Your inability to make your Linux business a success, while unfortunate for you, parallels your company's failure to make your UNIX business a success. Perhaps the problem isn't Linux, the GPL, or the open source business model.
|
Economist Amy Wohl is of the opinion that "The Open Source Community Has a Business Model" and one that is successful. Ms. Wohl is an analyst who has been covering IT for nearly 30 years and who currently comments on the commercialization of new and emerging technology. Here are her comments, which we include with her kind permission:
|
"As an economist, let me assure you that Open Source has a business model. It simply isn't one that a traditional company like SCO, which expects to be paid for source code, can figure out. There are still lots of companies that can charge for source code, but only when the source code they are offering is valued by customers because it is unique or convenient or offers other recognized value. Other companies (IBM is a good example) charge for their Linux-compatible middleware source code, but honor the Open Source community by supporting it with technical and financial assistance and by strongly supporting the open standards that permit customers to choose to use Open Source code when they prefer it and purchased source code when they find it, for whatever reason, more valuable. Then, as many posters have noted, IBM extends its business model into the future by providing services to help customers plan, design, implement, and customize whatever combinations of hardware, open source, and proprietary code the customer prefers.
|
"That is the new business model and it seems to be a very successful one."
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DUAL LICENSING IS AN OPTION
|
We suggest that you ask your attorneys to explain the Lesser General Public License to you . If they are not familiar with the LGPL, contact the Free Software Foundation, and they can help you to resolve your misunderstanding and confusion about the GPL and how it works and can explain to you how the LGPL can help your business to thrive, should you insist on continuing with the old proprietary software business model. Companies such as MySQL distribute software simultaneously under both open source and proprietary licenses, a practice that is acceptable, if not ideal, under the GPL.
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It is not a violation of the GPL to sell software released under that license. As the GPL FAQ points out, "The right to sell copies is part of the definition of free software." The "free" in free software refers to freedom, not that you can get it gratis. Many of us have paid for our free software, simply because it's more convenient than downloading it or as a way to thank the wonderful folks who developed and shared it with the world. If you're looking for a successful business model, you might consider the tried and true model of satisfied customers.
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We have prepared a research document with links to evidence supporting our position and other resources that you may find helpful, including information about the GPL and the LGPL and how they work. The Inquirer is making our research document available online. We hope it will help you understand our position better and prove a useful resource to you and others interested in this controversy. We also believe it demonstrates that we have right on our side and that we will win.
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Thank you for writing to us. We appreciate the opportunity to answer your letter. We trust you will give our response due consideration. Thank you for your time.
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Sincerely,
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Members of The Open Source/Free Software Community at Groklaw
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Copyright © Groklaw, 2003
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Verbatim copying of this letter is permitted in any medium, provided this notice is preserved.
Re: Indemnification and Linux Insanity
Posted by: RobEnderle 2003-09-29 19:17:34 In reply to: tungtung
Actually I just think the letter is stupid because it increases the FUD and the ability that SCO has to collect money. The insanity is the suggestion that indemnification is a bad thing. Now that is really convoluted logic. Seriously, in today’s world with companies (and law firms) who live on litigation like this shouldn't we ask this of every software vendor?
Re: Indemnification and Linux Insanity
Posted by: cypherpunks 2003-10-03 16:27:05 In reply to: RobEnderle
I fail to see how the letter "increases the FUD and the ability that SCO has to collect money". Please explain how exactly you come to that conclusion. I believe you are all talk, and won't be able to back up your statement.
.
You also state that it's "convoluted logic" to claim that indemnification is a bad thing for IBM. If SCO prevails in court then it gives SCO free reign to to sue all IBM customers for $$$$$, if SCO loses in court which seems extremely likely, SCO will claim that IBM couldn't have suffered loss of business and hence there will be no liability for loss of IBM's business. I frankly see no advantage to IBM, only to SCO, and especially CANOPY in IBM indemnifying customers.
.
I seriously doubt there have been any IBM customers that have more faith in a washed up company like SCO than they do in IBM. I doubt IBM has lost any business because of SCO, but that won't prevent IBM from claiming they have and then going after Canopy's money. Don't forget SCO is trying to get out of going to court against Red Hat. If only IBM would indemnify, perhaps they could claim that their threats against Red Hat don't constitute a threat to Red Hat's business.
.
SCO dug this grave, now they can lie in it. There has been no evidence that SCO's empty threats and multitude of lies has hurt Linux adoption, and even if it had, it's not hurt Linux *development* which is really the only thing the developers care about. When companies benefit from Linux deployment that's icing on the cake, that's not why people develop for Linux. If it was, Linux wouldn't exist.
.
You also state that it's "convoluted logic" to claim that indemnification is a bad thing for IBM. If SCO prevails in court then it gives SCO free reign to to sue all IBM customers for $$$$$, if SCO loses in court which seems extremely likely, SCO will claim that IBM couldn't have suffered loss of business and hence there will be no liability for loss of IBM's business. I frankly see no advantage to IBM, only to SCO, and especially CANOPY in IBM indemnifying customers.
.
I seriously doubt there have been any IBM customers that have more faith in a washed up company like SCO than they do in IBM. I doubt IBM has lost any business because of SCO, but that won't prevent IBM from claiming they have and then going after Canopy's money. Don't forget SCO is trying to get out of going to court against Red Hat. If only IBM would indemnify, perhaps they could claim that their threats against Red Hat don't constitute a threat to Red Hat's business.
.
SCO dug this grave, now they can lie in it. There has been no evidence that SCO's empty threats and multitude of lies has hurt Linux adoption, and even if it had, it's not hurt Linux *development* which is really the only thing the developers care about. When companies benefit from Linux deployment that's icing on the cake, that's not why people develop for Linux. If it was, Linux wouldn't exist.
Re: Indemnification and Linux Insanity
Posted by: tungtung 2003-09-29 23:26:05 In reply to: RobEnderle
Rob,
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You're right about the FUD. The letter makes it clear that we should Fear SCO, be Uncertain about SCO's claims, and Doubt SCO's honesty and sanity. However, I don't see the problem with that.
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All joking aside, I dislike your position on indemnification. Had you come out before this lawsuit hit and complained that software licenses didn't give the vendor enough responsibility, I would respect that position. However, your language makes it clear that you accept SCO's ideas on the subject.
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You see, when SCO pushes the idea of indemnification, they push it in a matter contrary to all law and common sense. Let's start by examining the question of proof. While SCO has made some claims, the preliminary evidence is not in their favor at all. Go to www.groklaw.com and read the whole thing - you'll understand very quickly that SCO's case has serious problems which range from the way it interacts with current case law to the evidentiary foundation upon which the case is built.
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Further, SCO hasn't yet been to court, and there will not be a verdict in the case until at least April of 2005. (That's the current schedule. Now that IBM has filed two seperate counter-claims and is requesting paperwork from Canopy as well as SCO, I suspect that it will take much longer for a verdict. Then there's the Red Hat suit...) I suspect that resolving the case at the lower court level will take until at least 2006. The appeals process will probably consume another couple years, so chances are that SCO will not have a verdict until somewhere in the neighborhood of 2008.
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Meanwhile, without having proved their case, SCO is claiming the right to bill users and restrict the rights those users have under the software's already existing license. Unfortunately, that's not correct. SCO won't have the right to bill users until after they've proved their case. Doing so is certainly illegal in some jurisdictions, and I doubt that any judge would rule that SCO has a right to be paid before winning in court. Unfortunately for Joe User, getting a judge to rule that SCO can't bill him is expensive and stressful. He has to hire a lawyer, go to court, etc.,
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So what SCO is really saying when they offer a license is that they will not attempt to bill or sue the end user. In other words, sale of their license is not based on any right to bill someone. It is based, purely and simply on the naked threat of harassment.
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SCO is not saying, "Buy a license because you legally need a license to run our software." That has yet to be proved. SCO is saying, "This is a rough neighborhood. If ya buys our license, nothing bad will happen to ya."
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I don't need IBM or Red Hat granting me indemnification to keep someone like that away. When Guido comes to my door, I simply call the police. If SCO bills me, I'll call the police and make a fraud complaint.
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Now let's assume that somehow SCO wins their case against IBM. Do they have a right to bill someone then? Probably not. Legally, an end user who buys a copyrighted work in good faith is not liable. For example, if I go to the bookstore and buy a copy of "Harry Potter and the Sorcerer's Stone," and it turns out that the book was pirated, neither J.K. Rowling nor her publisher can sue me. However, they can sue the publisher and distributor(s) of the pirated book, and they might be able to sue the bookstore, but I'm in the clear. (If this was a patent case, the story would be a little different, but SCO does not own any Unix patents and has not protected their Unix trade secrets, most of which can be found on the internet and in many college textbooks. IBM, on the other hand, has both copyrights and patents on RCU, NUMA, JFS, etc.,)
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If SCO wins the case, they can certainly charge a license fee for updates, and they could charge a license fee before fixing my software. They could, for example, keep me from posting a kernel patch to the internet or publishing their code. But they couldn't charge me for what I had already bought in good faith.
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However, if SCO wins, they can, however, bill IBM, Red Hat, HP, and perhaps even any website that offered Linux for free downloading. They might even be able to sue Linus Torvalds, Alan Cox, or the Free Software Foundation and anyone else who's responsible for distributing and infringing kernel. These would be the entities which are responsible for SCO's business losses. However, if they sue me and have also sued IBM, Red Hat, etc., that's considered "double dipping" and judges don't like double dipping. In other words, I'm protected even if SCO wins. So I don't need indemnification in that case either.
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The really sad thing about all this is that if SCO wins they still might not make any money off the software. There are thousands of contributors to the kernel. If SCO succeeds in destroying the GPL those contributors will still have copyright on anything that is not infringing. They can demand that SCO pay them for the code, and they can sue SCO for damages if SCO continues to distribute the code without offering them renumeration. SCO could get everything they want in court and end up with a kernel they can't distribute. That makes their suit worse than useless. There's a "We're going to kill you simply because we are dying." ambiance about the whole thing that's just plain disturbing.
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Alex
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You're right about the FUD. The letter makes it clear that we should Fear SCO, be Uncertain about SCO's claims, and Doubt SCO's honesty and sanity. However, I don't see the problem with that.
|
All joking aside, I dislike your position on indemnification. Had you come out before this lawsuit hit and complained that software licenses didn't give the vendor enough responsibility, I would respect that position. However, your language makes it clear that you accept SCO's ideas on the subject.
|
You see, when SCO pushes the idea of indemnification, they push it in a matter contrary to all law and common sense. Let's start by examining the question of proof. While SCO has made some claims, the preliminary evidence is not in their favor at all. Go to www.groklaw.com and read the whole thing - you'll understand very quickly that SCO's case has serious problems which range from the way it interacts with current case law to the evidentiary foundation upon which the case is built.
|
Further, SCO hasn't yet been to court, and there will not be a verdict in the case until at least April of 2005. (That's the current schedule. Now that IBM has filed two seperate counter-claims and is requesting paperwork from Canopy as well as SCO, I suspect that it will take much longer for a verdict. Then there's the Red Hat suit...) I suspect that resolving the case at the lower court level will take until at least 2006. The appeals process will probably consume another couple years, so chances are that SCO will not have a verdict until somewhere in the neighborhood of 2008.
|
Meanwhile, without having proved their case, SCO is claiming the right to bill users and restrict the rights those users have under the software's already existing license. Unfortunately, that's not correct. SCO won't have the right to bill users until after they've proved their case. Doing so is certainly illegal in some jurisdictions, and I doubt that any judge would rule that SCO has a right to be paid before winning in court. Unfortunately for Joe User, getting a judge to rule that SCO can't bill him is expensive and stressful. He has to hire a lawyer, go to court, etc.,
|
So what SCO is really saying when they offer a license is that they will not attempt to bill or sue the end user. In other words, sale of their license is not based on any right to bill someone. It is based, purely and simply on the naked threat of harassment.
|
SCO is not saying, "Buy a license because you legally need a license to run our software." That has yet to be proved. SCO is saying, "This is a rough neighborhood. If ya buys our license, nothing bad will happen to ya."
|
I don't need IBM or Red Hat granting me indemnification to keep someone like that away. When Guido comes to my door, I simply call the police. If SCO bills me, I'll call the police and make a fraud complaint.
|
Now let's assume that somehow SCO wins their case against IBM. Do they have a right to bill someone then? Probably not. Legally, an end user who buys a copyrighted work in good faith is not liable. For example, if I go to the bookstore and buy a copy of "Harry Potter and the Sorcerer's Stone," and it turns out that the book was pirated, neither J.K. Rowling nor her publisher can sue me. However, they can sue the publisher and distributor(s) of the pirated book, and they might be able to sue the bookstore, but I'm in the clear. (If this was a patent case, the story would be a little different, but SCO does not own any Unix patents and has not protected their Unix trade secrets, most of which can be found on the internet and in many college textbooks. IBM, on the other hand, has both copyrights and patents on RCU, NUMA, JFS, etc.,)
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If SCO wins the case, they can certainly charge a license fee for updates, and they could charge a license fee before fixing my software. They could, for example, keep me from posting a kernel patch to the internet or publishing their code. But they couldn't charge me for what I had already bought in good faith.
|
However, if SCO wins, they can, however, bill IBM, Red Hat, HP, and perhaps even any website that offered Linux for free downloading. They might even be able to sue Linus Torvalds, Alan Cox, or the Free Software Foundation and anyone else who's responsible for distributing and infringing kernel. These would be the entities which are responsible for SCO's business losses. However, if they sue me and have also sued IBM, Red Hat, etc., that's considered "double dipping" and judges don't like double dipping. In other words, I'm protected even if SCO wins. So I don't need indemnification in that case either.
|
The really sad thing about all this is that if SCO wins they still might not make any money off the software. There are thousands of contributors to the kernel. If SCO succeeds in destroying the GPL those contributors will still have copyright on anything that is not infringing. They can demand that SCO pay them for the code, and they can sue SCO for damages if SCO continues to distribute the code without offering them renumeration. SCO could get everything they want in court and end up with a kernel they can't distribute. That makes their suit worse than useless. There's a "We're going to kill you simply because we are dying." ambiance about the whole thing that's just plain disturbing.
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Alex
Re: Indemnification and Linux Insanity
Posted by: RobEnderle 2003-09-30 12:59:51 In reply to: tungtung
Actually it was Laura DiDio over and Yankee that convinced me of this, as far as I know that was before SCO jumped in (though I'm not really sure when they did that). I've been off licensing for some time and it was my conversation with her that convinced me otherwise. However indemnification means if Audit asks for my risk assessment I show them the indemnification and they go away, otherwise I may be a dead man walking. My teams were particularly nasty about taking on risk without proper approvals and in today’s world litigation risk authority does not reside in IT (and least not that I'm aware of). For a small company its just piece of mind, but for a large company it could actually mean your job.
Agree, I really doubt, long term this will work for SCO now. Short term, sure, but this is a huge mess and the costs are going up for them at a rate that would scare a multi-national.
Agree, I really doubt, long term this will work for SCO now. Short term, sure, but this is a huge mess and the costs are going up for them at a rate that would scare a multi-national.
Re: Indemnification and Linux Insanity
Posted by: LinuxCrunchie 2003-09-30 17:26:17 In reply to: RobEnderle
> Actually it was Laura DiDio over and Yankee that convinced me of this...
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Would that be the one that can't read C? The one that claimed how SCO has a strong case, based on seeing code that's in public domain and/or clean implementation by Linux developers? Such an authority...
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Would that be the one that can't read C? The one that claimed how SCO has a strong case, based on seeing code that's in public domain and/or clean implementation by Linux developers? Such an authority...
Re: Indemnification and Linux Insanity
Posted by: sinp 2003-10-01 12:31:21 In reply to: LinuxCrunchie
Yes she is The One. :)
Denes
Denes
You know, hind sight is 20 20, when we looked at the code the OSS folks were saying SCO didn't have any evidence which is why both she, and I went down that path. To her credit, Laura discovered that at least some of the code she saw traced back to work IBM did seperate from UNIX and she reported that as well.
They had evidence, if the OSS folks had done their homework first (they clearly could have looked and found the same stuff the SCO folks did) rather then denying it even existed this thing would have been nipped in the bud and we likely wouldn't even be having this conversation.
Stories have changed on both sides since this thing started and I'm having more and more trouble seeing white hats anyplace.
They had evidence, if the OSS folks had done their homework first (they clearly could have looked and found the same stuff the SCO folks did) rather then denying it even existed this thing would have been nipped in the bud and we likely wouldn't even be having this conversation.
Stories have changed on both sides since this thing started and I'm having more and more trouble seeing white hats anyplace.
Re: Indemnification and Linux Insanity
Posted by: cypherpunks 2003-10-04 03:51:35 In reply to: RobEnderle
<<You know, hind sight is 20 20, when we looked at the code the OSS folks were saying SCO didn't have any evidence which is why both she, and I went down that path.>>
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How about that - the OSS people were right, and not in hindsight and you were wrong. I seem to also recall that you were claiming that SCO had a 55% - 65% chance of prevailing against IBM and you wrote that article on September 2nd, AFTER SCO's claims of evidence were debunked.
.
http://www.technewsworld.com/perl/story/31479.html
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I guess *your* hindsight isn't quite 20/20.
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<<To her credit, Laura discovered that at least some of the code she saw traced back to work IBM did seperate from UNIX and she reported that as well.>>
.
She reported that? Where? I'm genuinely curious about that. Provide a URL and a quote please. Laura Didio today is claiming she never signed SCO's NDA now. Did you realize that?
.
<<They had evidence, if the OSS folks had done their homework first (they clearly could have looked and found the same stuff the SCO folks did) rather then denying it even existed this thing would have been nipped in the bud and we likely wouldn't even be having this conversation.>>
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"They had evidence"? You mean the 30 old code that Kerrnigan and Ritchie wrote and released into the public domain in the most famous C programming book in the world, or the code that SCO stole from Berkeley - the Berkeley Packet filter?
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Also: I'm curious exactly how was the OSS community expected to "do their homework" without access to SCO's code? From day one, Linux developers have been asking SCO to identify the code so the problem could be mitigated and their claims checked and SCO still hasn't done this.
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<<Stories have changed on both sides since this thing started and I'm having more and more trouble seeing white hats anyplace.>>
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Be more specific. I know that SCO claimed that they were going to audit AIX users, and didn't have the legal authority to do it. I know SCO claimed they were going to present proof in June of code theft, and didn't. I know that that Darl McBride claimed to have unassailable evidence of theft, and still hasn't supported it. I know that SCO claimed to have revoked IBM's AIX license but didn't have the legal authority to do it. I know that SCO threated to invoice Linux users, and didn't. SCO even claimed to have sold Linux licenses but now, they've recanted on that story.
.
How has the story changed on the other side - the OSS side? Provide support for your claims.
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How about that - the OSS people were right, and not in hindsight and you were wrong. I seem to also recall that you were claiming that SCO had a 55% - 65% chance of prevailing against IBM and you wrote that article on September 2nd, AFTER SCO's claims of evidence were debunked.
.
http://www.technewsworld.com/perl/story/31479.html
.
I guess *your* hindsight isn't quite 20/20.
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<<To her credit, Laura discovered that at least some of the code she saw traced back to work IBM did seperate from UNIX and she reported that as well.>>
.
She reported that? Where? I'm genuinely curious about that. Provide a URL and a quote please. Laura Didio today is claiming she never signed SCO's NDA now. Did you realize that?
.
<<They had evidence, if the OSS folks had done their homework first (they clearly could have looked and found the same stuff the SCO folks did) rather then denying it even existed this thing would have been nipped in the bud and we likely wouldn't even be having this conversation.>>
.
"They had evidence"? You mean the 30 old code that Kerrnigan and Ritchie wrote and released into the public domain in the most famous C programming book in the world, or the code that SCO stole from Berkeley - the Berkeley Packet filter?
.
Also: I'm curious exactly how was the OSS community expected to "do their homework" without access to SCO's code? From day one, Linux developers have been asking SCO to identify the code so the problem could be mitigated and their claims checked and SCO still hasn't done this.
.
<<Stories have changed on both sides since this thing started and I'm having more and more trouble seeing white hats anyplace.>>
.
Be more specific. I know that SCO claimed that they were going to audit AIX users, and didn't have the legal authority to do it. I know SCO claimed they were going to present proof in June of code theft, and didn't. I know that that Darl McBride claimed to have unassailable evidence of theft, and still hasn't supported it. I know that SCO claimed to have revoked IBM's AIX license but didn't have the legal authority to do it. I know that SCO threated to invoice Linux users, and didn't. SCO even claimed to have sold Linux licenses but now, they've recanted on that story.
.
How has the story changed on the other side - the OSS side? Provide support for your claims.
Re: Indemnification and Linux Insanity
Posted by: EdCogburn 2003-10-02 04:08:58 In reply to: RobEnderle
"They had evidence," What evidence? The only evidence which has reached the public is from the slides that SCO used at their pep-rally. That evidence has been destroyed by the Linux community when they showed its true origins.
"if the OSS folks had done their homework first" This is what SCO should have done with the code they showed at their pep rally.
"(they clearly could have looked and found the same stuff the SCO folks did)" We did look, and found the same code in hundreds of places, released in text books, under other open licences, and clearly beyond the control of SCO.
"rather then denying it even existed" Prove that Rob. You're spouting FUD again. Linus nor anyone else ever said at first that it didn't exist, they just asked for the proof. The only "proof" so far (from the pep-rally) turned out to be a non-issue so everyone is getting more and more skeptical. The people best qualified to decide the origins of this code are still prevented from seeing the code in question. You and Lara and the others who signed NDAs are not programmers or professors of CompSci, and you were shown things in a controlled environment, shown only what SCO wanted you to see and nothing else. Pardon us if we wait for the discovery phase and let the real experts take a look.
"I'm having more and more trouble seeing white hats anyplace." Except in Redmond of course.
"if the OSS folks had done their homework first" This is what SCO should have done with the code they showed at their pep rally.
"(they clearly could have looked and found the same stuff the SCO folks did)" We did look, and found the same code in hundreds of places, released in text books, under other open licences, and clearly beyond the control of SCO.
"rather then denying it even existed" Prove that Rob. You're spouting FUD again. Linus nor anyone else ever said at first that it didn't exist, they just asked for the proof. The only "proof" so far (from the pep-rally) turned out to be a non-issue so everyone is getting more and more skeptical. The people best qualified to decide the origins of this code are still prevented from seeing the code in question. You and Lara and the others who signed NDAs are not programmers or professors of CompSci, and you were shown things in a controlled environment, shown only what SCO wanted you to see and nothing else. Pardon us if we wait for the discovery phase and let the real experts take a look.
"I'm having more and more trouble seeing white hats anyplace." Except in Redmond of course.
Re: Indemnification and Linux Insanity
Posted by: calson33 2003-09-29 15:37:16 In reply to: Rob Enderle
Microsoft indemnifies it's customers? What about the timeline suit brought against microsoft, which microsoft refused to indemnify it's customers even though they were found guilty of infringement in a court of law. SCO has proved nothing yet, in court or otherwise. If IBM did indemnify it's customers, it would give SCO one single point of attack to spread it's FUD. It would also set a precedent which no sane company would want. HP is using it as a marketing ploy to gain more customers, not out of some sense of misguided duty. They will be sorry down the line when their customers start expecting indemnity for everything.
Re: Indemnification and Linux Insanity
Posted by: RobEnderle 2003-09-29 19:11:02 In reply to: calson33
I've posed the link to the new Microsoft license above (in another response); it removes the limit that was in the earlier agreement. By contract Microsoft must indemnify now. I'm not sure why we shouldn't require this of all software companies, given the risk, it would seem a natural thing to ask them to take it.
From the updated MS license that you are referring to
----
Our obligations will not apply to the extent that the claim or adverse final judgment is based on
...
(v) use of, or access to, the product or service deliverables by any person or entity other than an employee of you or one of your affiliates;
----
So the SQL developers who develop software based on SQL server for third party clients will not be eligible for indemnification under the new license, although they are the ones who would have to pay for any additional Timeline licenses.
-
http://www.eweek.com/article2/0,3959,985554,00.asp
----
Our obligations will not apply to the extent that the claim or adverse final judgment is based on
...
(v) use of, or access to, the product or service deliverables by any person or entity other than an employee of you or one of your affiliates;
----
So the SQL developers who develop software based on SQL server for third party clients will not be eligible for indemnification under the new license, although they are the ones who would have to pay for any additional Timeline licenses.
-
http://www.eweek.com/article2/0,3959,985554,00.asp
That would be another agreement anyway. These are Volume License agreements, typically not done with developers.
Re: Indemnification and Linux Insanity
Posted by: nathanh 2003-09-30 07:04:00 In reply to: RobEnderle
"By contract Microsoft must indemnify now. I'm not sure why we shouldn't require this of all software companies, given the risk, it would seem a natural thing to ask them to take it."
I'm not sure why you think it's necessary. Why am I, a user, responsible for something that a developer or a company did? If I purchase a car and Ford illegally used a trade secret owned by Toyota during production, is Toyota allowed to sue me? It's a ludicrous idea. Yet you seem to think software plays by different rules.
I'm willing to entertain the idea that the law really is that stupid, and that innocent third parties are responsible for intellectual property infringements between two rivals, but I want to see you quote court case and page number before I accept it.
You want to talk about indemnity? You claim to be an analyst? Great. Then do some analysis. Find documented proof that I, a user, can be held responsible for something that IBM allegedly did to SCO.
I'm not sure why you think it's necessary. Why am I, a user, responsible for something that a developer or a company did? If I purchase a car and Ford illegally used a trade secret owned by Toyota during production, is Toyota allowed to sue me? It's a ludicrous idea. Yet you seem to think software plays by different rules.
I'm willing to entertain the idea that the law really is that stupid, and that innocent third parties are responsible for intellectual property infringements between two rivals, but I want to see you quote court case and page number before I accept it.
You want to talk about indemnity? You claim to be an analyst? Great. Then do some analysis. Find documented proof that I, a user, can be held responsible for something that IBM allegedly did to SCO.
Re: Indemnification and Linux Insanity
Posted by: tungtung 2003-09-29 14:21:45 In reply to: Rob Enderle
If you really want to help, why don't come out solidy against SCO, a useless, dying company whose only hope for survival is to
either be bought out or convince a judge and jury that their dubious legal ideas about derivatives, ownership, and copyright are valid? Why don't you note that every technical claim they've made has been proven invalid and that SCO insiders are selling stock at a huge rate?
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You've got a huge audience and your story has already been quoted over at LinuxWorld. If you really want to help, why don't you stand up and tell the world what those of us who've been following the case have known for months - that SCO is a nasty little crooked organization which is trying very hard to get rich off someone else's hard work?
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Alex
either be bought out or convince a judge and jury that their dubious legal ideas about derivatives, ownership, and copyright are valid? Why don't you note that every technical claim they've made has been proven invalid and that SCO insiders are selling stock at a huge rate?
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You've got a huge audience and your story has already been quoted over at LinuxWorld. If you really want to help, why don't you stand up and tell the world what those of us who've been following the case have known for months - that SCO is a nasty little crooked organization which is trying very hard to get rich off someone else's hard work?
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Alex
Re: Indemnification and Linux Insanity
Posted by: RobEnderle 2003-09-29 19:07:08 In reply to: tungtung
Here is my problem, I believe in SCO's right to protect what they've bought; I also believe that IBM and the Linux community are actually pushing them into this extreme behavior. Do I condone it? No, in the end I can't but think it will be an incredibly painful process where no one, including SCO will like the result. People need to start thinking of an exit strategy or this will likely get worse before it gets better. Someone needs to make a move that isn't warlike.
Re: Indemnification and Linux Insanity
Posted by: cypherpunks 2003-10-04 04:04:45 In reply to: RobEnderle
<<Here is my problem, I believe in SCO's right to protect what they've bought; I also believe that IBM and the Linux community are actually pushing them into this extreme behavior.>>
.
How is IBM pushing SCO into this extreme behavior. In June, the ONLY comment IBM made with regard to SCO was that the AIX license was irrevokable - they said nothing else, and SCO had their same extreme behavior then as they do now.
.
The OSS community has just been asking SCO to identify the code in the Linux that SCO claims is theirs so the history can be examined. In response, SCO claimed that Linux developers had no respect for IP rights and were thieves.
.
<<Do I condone it? No, in the end I can't but think it will be an incredibly painful process where no one, including SCO will like the result.>>
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This is only painful for SCO because they keep painting themselves in a new corner every few weeks. They've been caught in at least a half a dozen lies. This is merely entertainment for the OSS community now.
.
<<People need to start thinking of an exit strategy or this will likely get worse before it gets better. Someone needs to make a move that isn't warlike.>>
.
This was an exit strategy from the beginning. Competent analysts pointed out back in March of last year that this appeared to be an attempt to be purchased by IBM. You think this is just an attempt by SCO to "protect what they bought".
.
When Caldera bought AT&T's Unix they stated the reason they purchased it was to take the best parts out of Unix and place it into Linux. Just ask Ransom Love about it.
.
How is IBM pushing SCO into this extreme behavior. In June, the ONLY comment IBM made with regard to SCO was that the AIX license was irrevokable - they said nothing else, and SCO had their same extreme behavior then as they do now.
.
The OSS community has just been asking SCO to identify the code in the Linux that SCO claims is theirs so the history can be examined. In response, SCO claimed that Linux developers had no respect for IP rights and were thieves.
.
<<Do I condone it? No, in the end I can't but think it will be an incredibly painful process where no one, including SCO will like the result.>>
.
This is only painful for SCO because they keep painting themselves in a new corner every few weeks. They've been caught in at least a half a dozen lies. This is merely entertainment for the OSS community now.
.
<<People need to start thinking of an exit strategy or this will likely get worse before it gets better. Someone needs to make a move that isn't warlike.>>
.
This was an exit strategy from the beginning. Competent analysts pointed out back in March of last year that this appeared to be an attempt to be purchased by IBM. You think this is just an attempt by SCO to "protect what they bought".
.
When Caldera bought AT&T's Unix they stated the reason they purchased it was to take the best parts out of Unix and place it into Linux. Just ask Ransom Love about it.
Re: Indemnification and Linux Insanity
Posted by: EdCogburn 2003-10-02 04:28:11 In reply to: RobEnderle
Do you believe in the right that a defendant is innocent until *proven* guilty? Do you believe people should be fined or jailed for an alleged crime before there has been a trial proving the people commited the crime?
Enlighten us as to how the Linux community and IBM are forcing SCO's behavior when they are the defendants, and how is sueing for 3 billion dollars not a warlike act itself Rob?
Enlighten us as to how the Linux community and IBM are forcing SCO's behavior when they are the defendants, and how is sueing for 3 billion dollars not a warlike act itself Rob?
Re: Indemnification and Linux Insanity
Posted by: nathanh 2003-09-30 06:19:03 In reply to: RobEnderle
"People need to start thinking of an exit strategy or this will likely get worse before it gets better. Someone needs to make a move that isn't warlike."
Linus Torvalds has already offered SCO an exit strategy: identify the infringing code and it will be removed. SCO can still collect damages from IBM and Linux can continue to provide cost savings to millions of users.
We all know SCO wants to construct a toll bridge on the public park we call Linux. Tough luck. We don't want that. If IBM slipped some SCO code into Linux then we want it REMOVED. No compromise. No excuses. SCO will get nothing else from the Linux community.
Linus Torvalds has already offered SCO an exit strategy: identify the infringing code and it will be removed. SCO can still collect damages from IBM and Linux can continue to provide cost savings to millions of users.
We all know SCO wants to construct a toll bridge on the public park we call Linux. Tough luck. We don't want that. If IBM slipped some SCO code into Linux then we want it REMOVED. No compromise. No excuses. SCO will get nothing else from the Linux community.
Re: Indemnification and Linux Insanity
Posted by: RobEnderle 2003-09-30 13:06:13 In reply to: nathanh
Linus' approach was, honestly, more of an attack. There needs to be some effort to mediate this, or at least make it go away as a problem while it goes through the trial process. It just makes no sense to continue to inflame the situation, particularly when that benefits SCO.
Re: Indemnification and Linux Insanity
Posted by: cypherpunks 2003-10-04 04:07:37 In reply to: RobEnderle
<<Linus' approach was, honestly, more of an attack.>>
.
Really? How so? What exactly was "Linus' approach"? He asked SCO to identify the code so it could be examined, and if indeed it was SCO's *removed*. I.E. he offered to mitigate the problem.
.
How is that an attack? Honestly?
.
Really? How so? What exactly was "Linus' approach"? He asked SCO to identify the code so it could be examined, and if indeed it was SCO's *removed*. I.E. he offered to mitigate the problem.
.
How is that an attack? Honestly?
Re: Indemnification and Linux Insanity
Posted by: EdCogburn 2003-10-02 04:21:06 In reply to: RobEnderle
To say Linus's statements are an attack is silly compared to what SCO has been saying. Linus just wants them to prove their claims.
How do you mediate with terrorists, Rob? No, SCO isn't a terrorist, but they are trying to *destroy* Linux, and set precedents that would hamper other software companies, and IBM can't negotiate with that. Its SCO who is forcing this into litigation, they sued first remember? They could have just said "Please remove this code because its ours" but they didn't do that, they went straight to litigation and still refuse to show us the code they claim is theirs.
Only someone hostile to open-source and Linux can look at this situation and say that the *defenders* are more belligerent than the *attackers*.
How do you mediate with terrorists, Rob? No, SCO isn't a terrorist, but they are trying to *destroy* Linux, and set precedents that would hamper other software companies, and IBM can't negotiate with that. Its SCO who is forcing this into litigation, they sued first remember? They could have just said "Please remove this code because its ours" but they didn't do that, they went straight to litigation and still refuse to show us the code they claim is theirs.
Only someone hostile to open-source and Linux can look at this situation and say that the *defenders* are more belligerent than the *attackers*.
Re: Indemnification and Linux Insanity
Posted by: dsnider 2003-09-29 14:05:16 In reply to: Rob Enderle
Are you certain that IBM had, and was able to include native Win32 support into OS/2?
I was always under the impression that they either didn't have this technology or were not allowed to use it due to some agreement with Microsoft.
If OS/2 was able to run 32bit Windows apps natively, then Windows 95 would not have been able to compete with it. Everyone would have switched to OS/2 because it was far more stable.
Who wants to run OS/2 when 95% of the applications only run under Windows 95?
I was always under the impression that they either didn't have this technology or were not allowed to use it due to some agreement with Microsoft.
If OS/2 was able to run 32bit Windows apps natively, then Windows 95 would not have been able to compete with it. Everyone would have switched to OS/2 because it was far more stable.
Who wants to run OS/2 when 95% of the applications only run under Windows 95?
Re: Indemnification and Linux Insanity
Posted by: RobEnderle 2003-09-29 18:07:40 In reply to: dsnider
Yes, I was at Dataquest at the time and the code had actually been created by the PC unit to address the problem. The IBM software unit refused to allow them to use it. I tried to use whatever influence I had to change this position.
Re: Indemnification and Linux Insanity
Posted by: EnriqueS 2003-09-29 22:16:37 In reply to: RobEnderle
With SCO, HP (IBM's main competitor), Rob Enderle and Laura Didio all chanting the Indemnificaton FUD theme-song, one must reasonably suspect that it is one of two things:
*
1) A Red Herring
2) Bait for a Set-up
*
Based on the roster of those espousing it, let alone all of the valid points made in the GrokLaw Response (which you have conveniently avoided in taking on in a point by point basis) is by itself more than enough reason for IBM to stand its ground and not take a bite from Eve's green apple.
*
Instead, IBM has decided to take on the SCO devil and slay him with the GPL sword. When that happens (and it will), don't be too surprised.
*
1) A Red Herring
2) Bait for a Set-up
*
Based on the roster of those espousing it, let alone all of the valid points made in the GrokLaw Response (which you have conveniently avoided in taking on in a point by point basis) is by itself more than enough reason for IBM to stand its ground and not take a bite from Eve's green apple.
*
Instead, IBM has decided to take on the SCO devil and slay him with the GPL sword. When that happens (and it will), don't be too surprised.
Re: Indemnification and Linux Insanity
Posted by: RobEnderle 2003-09-30 13:09:50 In reply to: EnriqueS
Cute but why do all of Linux users have to be on the battlefield. I don't disagree with all of the points the letter makes only that it seems to increase concern not eliminate it. Linux says this, SCO says that, the average Joe can't tell who is right and SCO makes money by default. Why is that a good thing?
Re: Indemnification and Linux Insanity
Posted by: EdCogburn 2003-10-02 04:41:12 In reply to: RobEnderle
"it seems to increase concern not eliminate it" To me that sounds like you DO disagree with the points made, because if you believe the points made, then the prospects for an SCO victory are DRAMATICALLY reduced.
"the average Joe can't tell who is right" Of course YOU aren't an average Joe, and you KNOW who's right, right Rob?
Give us a break Rob, we aren't idiots. You're ducking the points made on Groklaw, and you're ducking the other evidence shown by the Linux community, and you continue to attack the Linux community, so forgive us for being just a little cynical.
"the average Joe can't tell who is right" Of course YOU aren't an average Joe, and you KNOW who's right, right Rob?
Give us a break Rob, we aren't idiots. You're ducking the points made on Groklaw, and you're ducking the other evidence shown by the Linux community, and you continue to attack the Linux community, so forgive us for being just a little cynical.
Re: Indemnification and Linux Insanity
Posted by: LinuxCrunchie 2003-09-30 17:34:05 In reply to: RobEnderle
> Cute but why do all of Linux users have to be on the battlefield.
|
Maybe because we want to be? We are sick and tired of characters like SCO. They have nothing to contribute, they just want to get something for nothing.
|
Maybe because we want to be? We are sick and tired of characters like SCO. They have nothing to contribute, they just want to get something for nothing.
Re: Indemnification and Linux Insanity
Posted by: roundnoon 2003-09-30 14:41:36 In reply to: RobEnderle
"why do all of Linux users have to be on the battlefield"
|
As end-users, we've been called thieves by Darl McBride and threatened with litigation. SCO has made no attempt at an amicable resolution. The kernel developers have stated a willingness to resolve any IP issues that may exist, and have been ignored. We appear to be under attack by a failed software company turned litigation machine. It's enough to make anyone a little testy.
|
As end-users, we've been called thieves by Darl McBride and threatened with litigation. SCO has made no attempt at an amicable resolution. The kernel developers have stated a willingness to resolve any IP issues that may exist, and have been ignored. We appear to be under attack by a failed software company turned litigation machine. It's enough to make anyone a little testy.
Re: Indemnification and Linux Insanity
Posted by: RobEnderle 2003-09-30 15:26:19 In reply to: roundnoon
I can't argue that and would feel the same way, however my sense is they are tricking you folks into making this a highly visible fight which works to their favor. They don't appear to be betting on the court outcome (this will likley settle out eventually) it is the process that will provide them with the most benefit and I don't understand why anyone in the OSS comunity wants to make SCO money.
Re: Indemnification and Linux Insanity
Posted by: EdCogburn 2003-10-02 04:48:29 In reply to: RobEnderle
Please make some sense. Its SCO whose making this as visible as possible with their press releases, and their "bills" to other companies, and their willingness to talk to any reporter who comes along. THEY want this to be visible, not us.
There will be a few gullible companies that pay them their blood money *before* a court has ruled, but most companies aren't biting. SCO still has to win their primary case before any judge would say that their "bills" to other companies are legal.
There will be a few gullible companies that pay them their blood money *before* a court has ruled, but most companies aren't biting. SCO still has to win their primary case before any judge would say that their "bills" to other companies are legal.
Re: Indemnification and Linux Insanity
Posted by: roundnoon 2003-09-30 16:08:23 In reply to: RobEnderle
You make a good point - if their only hope of making money is to coerce license fees from risk-intolerant companies, then raising the profile of the argument is free publicity for them.
|
Unfortunately, if we keep quiet, they'll be the only ones talking in the press. Non-technical types who might be inclined to adopt OSS will have a distinctly negative view about our processes and products. And if we offer little or no resistance to SCO, then others of their ilk will use the same tactics.
|
Unfortunately, if we keep quiet, they'll be the only ones talking in the press. Non-technical types who might be inclined to adopt OSS will have a distinctly negative view about our processes and products. And if we offer little or no resistance to SCO, then others of their ilk will use the same tactics.
Re: Indemnification and Linux Insanity
Posted by: RobEnderle 2003-09-30 23:52:53 In reply to: roundnoon
I'm not suggesting OSS not respond to this threat, only that they do it strategically so their response cuts the legs from under SCO's position rather than help it. You see it in politics a lot, a losing candidate attempts to smear a wining candidate in the hope for a response like "I am not a crook", which implies he opposite.
Parts of the letter look like OSS is screaming “we aren’t crooks” which, unfortunately due to North American history, has many of assuming the opposite. It’s that kind of thing that I think needs more careful thought and consideration.
The right way, in my opinion, is to have a measured, and credible party step in, point out the failures in SCO's argument (as well as any minor valid points to maintain credibility) and then exit. When SCO rants, just point back to the original document (which can be enhanced with more information if needed over time). The object is for OSS to appear measured and professional while SCO looks desperate and out of control. This approach would likely help in court as well.
Parts of the letter look like OSS is screaming “we aren’t crooks” which, unfortunately due to North American history, has many of assuming the opposite. It’s that kind of thing that I think needs more careful thought and consideration.
The right way, in my opinion, is to have a measured, and credible party step in, point out the failures in SCO's argument (as well as any minor valid points to maintain credibility) and then exit. When SCO rants, just point back to the original document (which can be enhanced with more information if needed over time). The object is for OSS to appear measured and professional while SCO looks desperate and out of control. This approach would likely help in court as well.
Re: Indemnification and Linux Insanity
Posted by: cypherpunks 2003-10-04 05:04:17 In reply to: RobEnderle
<<I'm not suggesting OSS not respond to this threat, only that they do it strategically so their response cuts the legs from under SCO's position rather than help it.>>
.
Name ONE thing that the OSS community has done to "help" SCO in this idiotic campaign of theirs.
.
Would it be when the OSS community got photographs of the "evidence" SCO showed at SCO Forum, reseached the code, found that one example was from K&R the CREATORS of C and the other example was of code that SCO *STOLE* from Berkeley?
.
No - that can't be it...
.
Did it help SCO when the OSS community immediately offered to mitigate the problem and remove the offending code but was thwarted by SCO who *doesn't* want their "valuable IP" removed from Linux despite the fact that SCO claims that having it in Linux hurts them?
.
No - that can't be it..
.
Did it help SCO when RMS went through their original complaint and identified all the errors and lies that SCO made in their filing?
.
No - that can't be it..
.
Did it help SCO when it was discovered that they released SVR4 under a BSD license?
.
No - that can't be it..
.
So tell me, in what way has the OSS community inadvertently helped SCO?
.
<<You see it in politics a lot, a losing candidate attempts to smear a wining candidate in the hope for a response like "I am not a crook", which implies he opposite. Parts of the letter look like OSS is screaming “we aren’t crooks” which, unfortunately due to North American history, has many of assuming the opposite.>>
.
Oh pap. I don't know a single person who has this logic. Furthermore, the OSS community is more than happy to point to supporting documents and evidence. They don't just say "I'm not a crook", they present a mountain of evidence along with it that supports their statement.
.
Tell me of a politician that has said something along the lines of "I'm not a crook" when in fact he WASN'T a crook and was then believed to be a crook? Um....Nixon? Oh wait, he did authorize the break in to Democratic HQ. I seem to recall something about audio tapes that kind of sunk him too. Kind of like all those statements McBride made like the AIX world being a different place after June 13th. SCO doesn't have any credibilty, the OSS community does. We have more credibility than you do, for example.
.
<<It’s that kind of thing that I think needs more careful thought and consideration.
The right way, in my opinion, is to have a measured, and credible party step in, point out the failures in SCO's argument (as well as any minor valid points to maintain credibility) and then exit. When SCO rants, just point back to the original document (which can be enhanced with more information if needed over time).>>
.
Um... Isn't this supposed to be *your* job?
.
<<The object is for OSS to appear measured and professional while SCO looks desperate and out of control. This approach would likely help in court as well.>>
.
Neither IBM or Red Hat needs the OSS community's help in court. The facts speak for themselves. SCO already was eviscerated by LinuxTag in Germany. Expect to see it happen at least two more times.
.
Name ONE thing that the OSS community has done to "help" SCO in this idiotic campaign of theirs.
.
Would it be when the OSS community got photographs of the "evidence" SCO showed at SCO Forum, reseached the code, found that one example was from K&R the CREATORS of C and the other example was of code that SCO *STOLE* from Berkeley?
.
No - that can't be it...
.
Did it help SCO when the OSS community immediately offered to mitigate the problem and remove the offending code but was thwarted by SCO who *doesn't* want their "valuable IP" removed from Linux despite the fact that SCO claims that having it in Linux hurts them?
.
No - that can't be it..
.
Did it help SCO when RMS went through their original complaint and identified all the errors and lies that SCO made in their filing?
.
No - that can't be it..
.
Did it help SCO when it was discovered that they released SVR4 under a BSD license?
.
No - that can't be it..
.
So tell me, in what way has the OSS community inadvertently helped SCO?
.
<<You see it in politics a lot, a losing candidate attempts to smear a wining candidate in the hope for a response like "I am not a crook", which implies he opposite. Parts of the letter look like OSS is screaming “we aren’t crooks” which, unfortunately due to North American history, has many of assuming the opposite.>>
.
Oh pap. I don't know a single person who has this logic. Furthermore, the OSS community is more than happy to point to supporting documents and evidence. They don't just say "I'm not a crook", they present a mountain of evidence along with it that supports their statement.
.
Tell me of a politician that has said something along the lines of "I'm not a crook" when in fact he WASN'T a crook and was then believed to be a crook? Um....Nixon? Oh wait, he did authorize the break in to Democratic HQ. I seem to recall something about audio tapes that kind of sunk him too. Kind of like all those statements McBride made like the AIX world being a different place after June 13th. SCO doesn't have any credibilty, the OSS community does. We have more credibility than you do, for example.
.
<<It’s that kind of thing that I think needs more careful thought and consideration.
The right way, in my opinion, is to have a measured, and credible party step in, point out the failures in SCO's argument (as well as any minor valid points to maintain credibility) and then exit. When SCO rants, just point back to the original document (which can be enhanced with more information if needed over time).>>
.
Um... Isn't this supposed to be *your* job?
.
<<The object is for OSS to appear measured and professional while SCO looks desperate and out of control. This approach would likely help in court as well.>>
.
Neither IBM or Red Hat needs the OSS community's help in court. The facts speak for themselves. SCO already was eviscerated by LinuxTag in Germany. Expect to see it happen at least two more times.
Re: Indemnification and Linux Insanity
Posted by: beaner1111 2003-10-01 07:05:18 In reply to: RobEnderle
I would normally agree with that kind of response. Just evaluate the claims, find all the relevant facts that prove it false, publish the whole thing in a comprehensible manner and there, the claim is dead.
BUT, the problem with SCO's case is that the claim is completely baseless. All the supposed proof they published has been shown to be completely false. So right now all the press and all the stories are about "alegations". You can't kill the story because SCO, probably in a very successfull attemp to make the story last longer, has yet to prove anything.
Linux is scaring the hell out of a lot of software companies because basically, they know a lot of them if not most of them will not survive. There IS a war going on and just like the RIAA is trying to stop file sharing, software companies have to try to stop or at least slow down the progress of free software. This was SCO's attempt...who will be next.
BUT, the problem with SCO's case is that the claim is completely baseless. All the supposed proof they published has been shown to be completely false. So right now all the press and all the stories are about "alegations". You can't kill the story because SCO, probably in a very successfull attemp to make the story last longer, has yet to prove anything.
Linux is scaring the hell out of a lot of software companies because basically, they know a lot of them if not most of them will not survive. There IS a war going on and just like the RIAA is trying to stop file sharing, software companies have to try to stop or at least slow down the progress of free software. This was SCO's attempt...who will be next.
Re: Indemnification and Linux Insanity
Posted by: RobEnderle 2003-10-01 22:03:26 In reply to: beaner1111
Agree, in the end SCO won't be the last to do this. (They aren't the first either), if they can muddy the waters enough they may even win their case.
I still think IBM screwed up someplace, this is not usual behavior for them, I'm missing something because on the surface SCO doesn't look particularly strong right now. Yet, IBM can't seem to make this go away and everything they do seems to inflame the situation.
Think about it, when has IBM ever put their brand at risk like this? Not since the Microsoft war and that didn't go well. It just feels like we are missing something.
Back to the point though, just running around screaming back at SCO doesn't fix anything. Whatever the approach is it should be strategic and aimed at accomplishing something other showcasing that OSS can be just as nasty as SCO can. Seriously, if you step back, doesn't this start to look like two children screaming at each other that they are right and the other is wrong? How do you pick the right side in a situation like that?
I'm not the best with kids but I know one thing, when this happens my tendency (and the tendency of a lot of others) is to walk away and let someone else deal with the problem.
To me, that tendency doesn't work for OSS....
I still think IBM screwed up someplace, this is not usual behavior for them, I'm missing something because on the surface SCO doesn't look particularly strong right now. Yet, IBM can't seem to make this go away and everything they do seems to inflame the situation.
Think about it, when has IBM ever put their brand at risk like this? Not since the Microsoft war and that didn't go well. It just feels like we are missing something.
Back to the point though, just running around screaming back at SCO doesn't fix anything. Whatever the approach is it should be strategic and aimed at accomplishing something other showcasing that OSS can be just as nasty as SCO can. Seriously, if you step back, doesn't this start to look like two children screaming at each other that they are right and the other is wrong? How do you pick the right side in a situation like that?
I'm not the best with kids but I know one thing, when this happens my tendency (and the tendency of a lot of others) is to walk away and let someone else deal with the problem.
To me, that tendency doesn't work for OSS....
Re: Indemnification and Linux Insanity
Posted by: btobin 2003-10-02 10:55:52 In reply to: RobEnderle
> Seriously, if you step back, doesn't this
> start to look like two children screaming
> at each other that they are right and the
> other is wrong? How do you pick the right
> side in a situation like that?
.
No, it looks like one person screaming threats at another while the threatened person calmly points out that the threats have no substance. IBM didn't start this thing; SCO did. SCO is willing to say and do anything, no matter how ludicrous, because they are going out of business anyway. IBM, like the rest of us, has better things to do.
> start to look like two children screaming
> at each other that they are right and the
> other is wrong? How do you pick the right
> side in a situation like that?
.
No, it looks like one person screaming threats at another while the threatened person calmly points out that the threats have no substance. IBM didn't start this thing; SCO did. SCO is willing to say and do anything, no matter how ludicrous, because they are going out of business anyway. IBM, like the rest of us, has better things to do.
Re: Indemnification and Linux Insanity
Posted by: tungtung 2003-10-02 10:41:43 In reply to: RobEnderle
Rob, I've been following this exhange for a couple days now, and I think you don't understand the scope and nature of the problem. Getting the real news about SCO out is very difficult, almost impossible.
|
SCO's claims have been researched very carefully by many, many people in the Open Source community, and that research is available on line. The research includes careful legal reasoning, cites, URL's, interviews, and very careful sourcing. To see that research, you have only to surf on over to http://www.groklaw.com. In the last forty-eight hours, Groklaw has reported on no less than six SCO stories, including one story, RedHat's Memorandum in Opposition to SCO's Motion to Dismiss, which as far as I know has only been covered at Groklaw. In each case, the stories include analysis, links, and primary source material (for example, PDF copies of all the filings and judicial decisions in the IBM and RedHat cases.) Each story includes a comments section where anyone can discuss the story. Certainly Groklaw isn't perfect - it's rabidly anti-SCO and you'll find the occassional bit of self-referential reasoning there - but in terms of making the whole story available and discussing it in terms of standard case law and proper legal reasoning Groklaw is head and shoulders above every other site or paper which reports on the case.
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The same is true of the research done by Eric Raymond and Rob Landley. Their position papers are much better than ninety percent of the mainstream reporting I've seen. Once again, this material contains URLs which link to the original source material, cites, and footnotes.
|
The work done by Peren's, Raymond, and Greg Lehey on the supposedly copied code SCO showed at SCO Forum is very good and clearly makes the point that SCO has no case. It has been massively unreported.
|
Getting reporters and analysts to actually go to these websites, read what's there, follow up the cites and URLs, then apply the careful research to the stories they print is like pulling teeth. Most of the stories I've seen look nine out of ten paragraphs were copied from SCO press releases.
|
Stories that have been ignored or covered poorly include Caldera's efforts, (pre SCO) to make sure that SMP was put into the Linux kernel, the shakiness of SCO's legal claims, Caldera's contributions to the Linux kernel, the possibility that some SCO boardmembers may be guilty of insider trading, SCO's legal problems in Germany and Australia, the issue of whether SCO can legally send out invoices for Linux lincensing when they have not proved their case in court, Caldera's plans to unite SCO and Linux, McBride deliberately misquoting Perens in his open letter, the USL vs BSD case, (which will likely have a major influence on the upcoming cases,) the fact that IBM owns the patents and copyrights to RCU, JFS, and NUMA, the fact that the JFS filesystem was originally designed for OS/2, and SCO's clear lack of any understanding of the history of UNIX and Linux or their own corporate history. I could go on, but I think I've made the point adequately.
|
The resources exist to get the story right. They're out there on the web, at courthouses (How did Groklaw get ahold of RedHat's Memorandum before any other news service reported the story at all?) and from the participants. With a couple important exceptions - Vaughn McNichols and Sam Varghese come immediately to mind - most of the reporters and analysts simply aren't doing their jobs. In the case of Groklaw these "reputable" journalists are getting scooped almost daily and don't even know it. So it doesn't surprise me at all that you think the OSS community is clueless. The press simply hasn't covered the other side of the story.
|
SCO's claims have been researched very carefully by many, many people in the Open Source community, and that research is available on line. The research includes careful legal reasoning, cites, URL's, interviews, and very careful sourcing. To see that research, you have only to surf on over to http://www.groklaw.com. In the last forty-eight hours, Groklaw has reported on no less than six SCO stories, including one story, RedHat's Memorandum in Opposition to SCO's Motion to Dismiss, which as far as I know has only been covered at Groklaw. In each case, the stories include analysis, links, and primary source material (for example, PDF copies of all the filings and judicial decisions in the IBM and RedHat cases.) Each story includes a comments section where anyone can discuss the story. Certainly Groklaw isn't perfect - it's rabidly anti-SCO and you'll find the occassional bit of self-referential reasoning there - but in terms of making the whole story available and discussing it in terms of standard case law and proper legal reasoning Groklaw is head and shoulders above every other site or paper which reports on the case.
|
The same is true of the research done by Eric Raymond and Rob Landley. Their position papers are much better than ninety percent of the mainstream reporting I've seen. Once again, this material contains URLs which link to the original source material, cites, and footnotes.
|
The work done by Peren's, Raymond, and Greg Lehey on the supposedly copied code SCO showed at SCO Forum is very good and clearly makes the point that SCO has no case. It has been massively unreported.
|
Getting reporters and analysts to actually go to these websites, read what's there, follow up the cites and URLs, then apply the careful research to the stories they print is like pulling teeth. Most of the stories I've seen look nine out of ten paragraphs were copied from SCO press releases.
|
Stories that have been ignored or covered poorly include Caldera's efforts, (pre SCO) to make sure that SMP was put into the Linux kernel, the shakiness of SCO's legal claims, Caldera's contributions to the Linux kernel, the possibility that some SCO boardmembers may be guilty of insider trading, SCO's legal problems in Germany and Australia, the issue of whether SCO can legally send out invoices for Linux lincensing when they have not proved their case in court, Caldera's plans to unite SCO and Linux, McBride deliberately misquoting Perens in his open letter, the USL vs BSD case, (which will likely have a major influence on the upcoming cases,) the fact that IBM owns the patents and copyrights to RCU, JFS, and NUMA, the fact that the JFS filesystem was originally designed for OS/2, and SCO's clear lack of any understanding of the history of UNIX and Linux or their own corporate history. I could go on, but I think I've made the point adequately.
|
The resources exist to get the story right. They're out there on the web, at courthouses (How did Groklaw get ahold of RedHat's Memorandum before any other news service reported the story at all?) and from the participants. With a couple important exceptions - Vaughn McNichols and Sam Varghese come immediately to mind - most of the reporters and analysts simply aren't doing their jobs. In the case of Groklaw these "reputable" journalists are getting scooped almost daily and don't even know it. So it doesn't surprise me at all that you think the OSS community is clueless. The press simply hasn't covered the other side of the story.
Re: Indemnification and Linux Insanity
Posted by: cypherpunks 2003-10-04 04:15:24 In reply to: tungtung
Just think about it - Rob Enderle claims that Groklaw's letters to McBride has problems, but he doesn't give a single concrete example of even ONE problem with it. The real problem is that Groklaw might just shut SCO up!
Re: Indemnification and Linux Insanity
Posted by: EdCogburn 2003-10-02 04:56:01 In reply to: RobEnderle
"Back to the point though, just running around screaming back at SCO doesn't fix anything. Whatever the approach is it should be strategic and aimed at accomplishing something other showcasing that OSS can be just as nasty as SCO can." Are you reading the same OSS sources that I am? Groklaw, SPI's position paper on the case, ers's expose of the alleged copied code that got public, sources posted to LinuxToday, sources posted to SlashDot, etc, etc. It sounds to me that you are going to some militant newsgroup/website with a few Linux hotheads, like comp.os.linux.advocacy, and are claiming they represent the OSS world. What I've seen is credible evidence that leaves SCO position in serious doubt.
Seriously Rob, what else are we supposed to do, given that the evidence against us hasn't been made public?
Seriously Rob, what else are we supposed to do, given that the evidence against us hasn't been made public?
Re: Indemnification and Linux Insanity
Posted by: RobEnderle 2003-10-03 21:37:43 In reply to: EdCogburn
What I've noticed is that if you get involved in a "discussion" on one of those web sites you often get branded a "SCO Lover" or worse and you are personally attacked. The whole sense is our truth is the only truth "or else". I had a friend of mine just walk through SCO's litigation strategy, chatted about it today. What is amazing is this apparently was not only anticipated it is being used to strengthen their case. That's what I mean about being measured and having a strategy, no you don't know what they have; they do know what you have and, apparently are planning to make good use of it.
One of the reasons you hold this till trial is you don't want the other side to have unlimited time to discredit your evidence. There are always two sides, right now OSS is showing all its cards, SCO clearly isn't and they appear to be playing off the OSS hand. Worse, I think all of the threats that are used against anyone that questions the OSS position create the sense that the position can not be supported any other way and, the first trial is a Jury trial.
It always worries me when one side gets convinced that they will win before they see what cards the other side is going to play. SCO has two top litigation teams on this, everything they are doing is designed to produce an outcome, they have a plan, and are still executing on it. It is not clear that IBM and OSS are even working together let alone have a plan. Anyone that has done protracted litigation should be really concerned about that.
One of the reasons you hold this till trial is you don't want the other side to have unlimited time to discredit your evidence. There are always two sides, right now OSS is showing all its cards, SCO clearly isn't and they appear to be playing off the OSS hand. Worse, I think all of the threats that are used against anyone that questions the OSS position create the sense that the position can not be supported any other way and, the first trial is a Jury trial.
It always worries me when one side gets convinced that they will win before they see what cards the other side is going to play. SCO has two top litigation teams on this, everything they are doing is designed to produce an outcome, they have a plan, and are still executing on it. It is not clear that IBM and OSS are even working together let alone have a plan. Anyone that has done protracted litigation should be really concerned about that.
Re: Indemnification and Linux Insanity
Posted by: cypherpunks 2003-10-04 07:40:58 In reply to: RobEnderle
<<What I've noticed is that if you get involved in a "discussion" on one of those web sites you often get branded a "SCO Lover" or worse and you are personally attacked. The whole sense is our truth is the only truth "or else". I had a friend of mine just walk through SCO's litigation strategy, chatted about it today. What is amazing is this apparently was not only anticipated it is being used to strengthen their case.>>
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Tell me, how does your friend believe this "strengthen's their case"? I am curious exactly how anything that's happened in the last 6 months strengthens SCO's case in court. Please enlighten me as to how anything that is said by a bunch of people on the internet strengthens SCO's case. I am dumb, and cannot comprehend such things.
.
Also, I am curious - is your friend imaginary or real?
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<<That's what I mean about being measured and having a strategy, no you don't know what they have; they do know what you have and, apparently are planning to make good use of it.>>
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IBM knows what they have. They have full access to the AT&T code base, just as HP does, and Sun, and SGI. IBM has a pretty good track record of settling when they get their hands caught in the cookie jar - why haven't they settled? Why is HP distancing themselves? Why did Sun try to keep their involvement with SCO secret. Why is SGI not settling?
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<<One of the reasons you hold this till trial is you don't want the other side to have unlimited time to discredit your evidence.>>
.
This is an utter lie. This is a *civil* trial. No new evidence will be admitted in court. All evidence is presented in the discovery phase which is happening now - the court date is 2005. There are no Perry Mason dramatics in a civil trial. I suggest you stop watching so much television Mr. Enderle and learn the basics of law.
.
<<There are always two sides, right now OSS is showing all its cards, SCO clearly isn't and they appear to be playing off the OSS hand.>>
.
The OSS "side" has nothing to hide. If there is SCO code in Linux, they want to mitigate. It's also somewhat difficult to hide your cards when all your code is in the public and you have thousands of people contributing in the complete daylight.
.
<<Worse, I think all of the threats that are used against anyone that questions the OSS position create the sense that the position can not be supported any other way and, the first trial is a Jury trial.>>
.
What threats? Why don't you provide some links to those threats.
.
<<It always worries me when one side gets convinced that they will win before they see what cards the other side is going to play. SCO has two top litigation teams on this, everything they are doing is designed to produce an outcome, they have a plan, and are still executing on it. It is not clear that IBM and OSS are even working together let alone have a plan. Anyone that has done protracted litigation should be really concerned about that.>>
.
Boies has all but disappeared from this case. He was highly vocal during the Microsoft anti trust trial, and he was very vocal during Gore's litigation, and during the Napster case. But in this case - he didn't even show up at SCO Forum. Did you read their initial filing against IBM? It was so rife with errors that it was astounding.
.
But, you think they have a plan and that all this, their empty threats, their lies, Canopy being subpoenaed, their CTO quitting, all the insider sales, their public evidence being utterly debunked, being sued by Red Hat, losing against LinuxTag in Germany, being sued in Australia, being countersued by IBM for patent infringement, copyright violations, and the Lanham act - that all that is part of a master plan?
.
I have a crazier possibility: SCO doesn't have a clue what their doing. I know it seems crazy, but I apply this bizarre little known principle called "Occam's Razor" that is the underlying principle of all science.
.
I know it's REALLY STUPID to think that the simplest explanation is probably the correct one, but that's me - stupid. I guess we should all really be scared of SCO and stuff because they have this unfathomable diabolical master plan which is going to destroy Linux and perhaps the tech industry itself!
.
I mean just because SCO has been caught lying a half dozen times - why, that's no reason to doubt their crediblity! Hey, if I get a full frontal lobotamy, can I get a job as an analyst too?
.
Tell me, how does your friend believe this "strengthen's their case"? I am curious exactly how anything that's happened in the last 6 months strengthens SCO's case in court. Please enlighten me as to how anything that is said by a bunch of people on the internet strengthens SCO's case. I am dumb, and cannot comprehend such things.
.
Also, I am curious - is your friend imaginary or real?
.
<<That's what I mean about being measured and having a strategy, no you don't know what they have; they do know what you have and, apparently are planning to make good use of it.>>
.
IBM knows what they have. They have full access to the AT&T code base, just as HP does, and Sun, and SGI. IBM has a pretty good track record of settling when they get their hands caught in the cookie jar - why haven't they settled? Why is HP distancing themselves? Why did Sun try to keep their involvement with SCO secret. Why is SGI not settling?
.
<<One of the reasons you hold this till trial is you don't want the other side to have unlimited time to discredit your evidence.>>
.
This is an utter lie. This is a *civil* trial. No new evidence will be admitted in court. All evidence is presented in the discovery phase which is happening now - the court date is 2005. There are no Perry Mason dramatics in a civil trial. I suggest you stop watching so much television Mr. Enderle and learn the basics of law.
.
<<There are always two sides, right now OSS is showing all its cards, SCO clearly isn't and they appear to be playing off the OSS hand.>>
.
The OSS "side" has nothing to hide. If there is SCO code in Linux, they want to mitigate. It's also somewhat difficult to hide your cards when all your code is in the public and you have thousands of people contributing in the complete daylight.
.
<<Worse, I think all of the threats that are used against anyone that questions the OSS position create the sense that the position can not be supported any other way and, the first trial is a Jury trial.>>
.
What threats? Why don't you provide some links to those threats.
.
<<It always worries me when one side gets convinced that they will win before they see what cards the other side is going to play. SCO has two top litigation teams on this, everything they are doing is designed to produce an outcome, they have a plan, and are still executing on it. It is not clear that IBM and OSS are even working together let alone have a plan. Anyone that has done protracted litigation should be really concerned about that.>>
.
Boies has all but disappeared from this case. He was highly vocal during the Microsoft anti trust trial, and he was very vocal during Gore's litigation, and during the Napster case. But in this case - he didn't even show up at SCO Forum. Did you read their initial filing against IBM? It was so rife with errors that it was astounding.
.
But, you think they have a plan and that all this, their empty threats, their lies, Canopy being subpoenaed, their CTO quitting, all the insider sales, their public evidence being utterly debunked, being sued by Red Hat, losing against LinuxTag in Germany, being sued in Australia, being countersued by IBM for patent infringement, copyright violations, and the Lanham act - that all that is part of a master plan?
.
I have a crazier possibility: SCO doesn't have a clue what their doing. I know it seems crazy, but I apply this bizarre little known principle called "Occam's Razor" that is the underlying principle of all science.
.
I know it's REALLY STUPID to think that the simplest explanation is probably the correct one, but that's me - stupid. I guess we should all really be scared of SCO and stuff because they have this unfathomable diabolical master plan which is going to destroy Linux and perhaps the tech industry itself!
.
I mean just because SCO has been caught lying a half dozen times - why, that's no reason to doubt their crediblity! Hey, if I get a full frontal lobotamy, can I get a job as an analyst too?
