[CLUE-Talk] Why SCO still sucks...

Sat May 3 00:38:21 MDT 2003

On Fri, 2003-05-02 at 23:44, Jed S. Baer wrote:

*snip*

> > What I'm saying is -- SCO is accusing IBM, Red Hat, SuSE and presumably
> > others of shipping code that they claim was part of SCO UnixWare -- but
> > if they've shipped products with the very same code, I don't see how
> > they can later say that the other companies didn't have the rights to do
> > so... are they really going to go into court and claim that they didn't
> > know what their own product contained? 
> 
> I just don't see what you're trying to get at. It looks to me as if there
> are two codebases here. One being the various Unix stuff to which SCO owns
> rights. They license these rights to may vendors. It is under those
> licenses that IBM, et. al. distribute their own Unix variants. SCO is
> saying that IBM's licenses do not extend to releasing that code into an
> Open/Free software environment. And of course, SCO, owning the rights, can
> certainly also use the code in their own proprietary Unix software
> release. Now, IBM still has those licenses, and SCO is threatening to
> revoke them. But I don't see how SCO's act of producing their own Unix
> distribution automatically implies GPL'd code, or has any bearing on how
> other vendors are licensed for use of SCO property.

Yes -- there are two codebases, and I'm not saying that SCO's production
of a proprietary Unix has anything to do with it. 

> Linux is a seperate codebase. Are you trying to say that because Caldera
> produced a Linux distro, and that SCO does also, as part of United Linux,
> that that somehow bears on the intellectual property licensing for the
> other codebase? Even if SCO/Caldera shipped a "tainted" Linux distro, they
> could very well have done it without knowing it -- I wouldn't expect the
> producer of a distro to read every line of source code. If their code was
> introduced into Linux without their consent or knowledge, how does their
> shipping of it grant freedom for anyone else to use it?

For one thing, McBride is now running around claiming that there will be
a "day of reckoning" for SuSE and Red Hat, implying that they have done
something wrong by shipping this "tainted" code. 

But how can Red Hat or SuSE be responsible for some kind of wrongdoing
when:

1. SCO itself shipped the same code. Either they were unaware that it
contained their code -- in which case, they can hardly blame another
company for being unaware as well. Or, they were aware, which would
imply consent for that code to be distributed under the GPL. 

2. SCO refuses to explain to these vendors (or anyone else for that
matter) what code it's actually talking about. 

They can't very well say that Red Hat or SuSE should be held responsible
for shipping code that's been tainted with code from UnixWare (if that
actually happened) if they were doing the same thing. Either they were
doing so knowingly, which implies permission for anyone else to do so
under the GPL, or they were unaware that the code was "tainted" -- so
they can't very well say they can't be expected to know what code is
"tainted" (especially when they should know better than anyone) but that
Red Hat and SuSE should have known better. 

I wonder if there's enough to build a slander case against SCO here?

Also -- I would hope that any Linux distributor the size of Red Hat or
SCO or SuSE *would* have had developers go through all or most of the
kernel code -- I mean, we're talking about something that they're now
pushing as an enterprise operating system. It would be damn embarassing
to find that there's some kind of backdoor in the kernel or other
security issue -- and how else would they find such a thing without
auditing the code? 

But, even if Red Hat or SuSE perform full audits -- it's ridiculous to
expect them to know if SCO code had been misappropriated -- how would
they know what to look for, not having access to the UnixWare code?

> If you're talking about SCO shipping UnixWare, how does that have anything
> to do with Linux?

No, I'm not talking about UnixWare... that's a totally different thing.
They can obviously ship anything they want there. Though, I'd be curious
whether an audit of UnixWare would turn up anything that shouldn't be
there... 

> > If there is actually SCO UnixWare code in the kernel, and they shipped
> > it, how can they have a case against Red Hat or IBM or SuSE? They're
> > either proving that another vendor would have had no way of knowing it
> > was there, or proving that they in fact approved of it being released
> > under the GPL. 
> 
> As I said, and I understand this is the claim, that the code in question
> was not placed there with their knowledge or consent.

But I think they'll have a hard time making that case if they've shipped
the exact same codebase. "Yes your honor, we didn't know what was in our
product. But we expect everyone else to!" 

> > > > If their case is so ironclad, why not prove it?  And how do we know
> > > > that Caldera did not contribute some code?
> > > 
> > > Uh, I think that's what the lawsuits are about. Prove it, in court,
> > > and collect your damages, or whatever you get out of it.
> > 
> > Why not provide the proof before resorting to a lawsuit?
> 
> Well, whether your or I or anyone else agrees with it, the choice of
> tactics is up to the plaintiff.
> 
> > Their execs are making all this noise about this being "about
> > principle." That's a load. It isn't as if the Linux Community at large
> > is trying to rip off SCO -- even if some jerk did submit SCO code to the
> > Linux kernel, it's not as if the entire community was in on some kind of
> > scam.
> 
> True, but now the see it as potentially affecting their bottom line. They
> also see IBM, and others, making money off Linux. It's always about money,
> isn't it? Same argument applies to Micro$oft -- they have a duty to their
> shareholders to produce ROI. Hell, you can make the sam statement about
> RedHat. SCO's position is that if there's money being made using their IP,
> they deserve a cut -- and obviously compensation for alleged wrongdoing.

See, I just don't see any wrongdoing here -- at least on behalf of SuSE
or Red Hat. Maybe, just maybe, someone did the wrong thing as an
employee of IBM -- but until they actually say to Red Hat or SuSE "hey,
this library here has X lines of our code" or "you can't use this
particular method of doing SMP (or whatever) because we have a patent on
it" then I can't see it as wrongdoing. At the very worst, Red Hat or
SuSE shipped something that had been misappropriated by someone else --
the only entity that should be held responsible for that should be the
person(s) who actually submitted proprietary code. 

> > If this were going the other way, someone claiming that SCO had
> > appropriated GPL'ed code for proprietary products, the same SCO execs
> > would be screaming bloody murder if they were sued without an
> > opportunity to remedy the problem prior to a lawsuit. What CNet and
> > others aren't pointing out when they write about this is that this is
> > the first time that anyone has claimed (at least that I'm aware of) that
> > proprietary code has wound up in a GPL'ed product -- but the reverse has
> > happened a number of times already, and they've all been resolved
> > without a lawsuit. 
> 
> Dunno what to say. That's SCO's choice -- a bad one, but their call to
> make.

True. I just hope that SCO gets the same treatment it's dishing out down
the road. 

> > I sincerely hope someone will file a suit against SCO claiming that the
> > company has appropriated some Linux code into UnixWare -- and I wouldn't
> > be at all surprised if that has happened at some point. 
> 
> Well, so far they've managed to be the target of a pretty large DDOS
> attack.

Yeah, that was dumb. Funny, but dumb. I expect that somebody's going to
end up with the FBI at their doorstep for that little stunt. 

> > > As far as whether SCO/Caldera code being in the kernel makes it
> > > automagically GPL'd, I'd say that would depend a great deal on how it
> > > got there. Certainly, anyone with legal rights to a chunk of code can
> > > release it under the GPL. What if someone didn't have the rights, and
> > > re-used the code anyway? As someone else said, now we have a mess.
> > 
> > I think it remains to be seen how much of a mess there is, depending on
> > what "proof" SCO actually brings to the table. 
> 
> Well yes, I was speaking hypothetically.
> 
> > At this point, I have little confidence that SCO has much of a case.
> > They've been lying every step of the way. First, they denied that they
> > were planning a lawsuit when it was leaked that they were talking to
> > David Boies. Then they admitted they were planning to "enforce their IP"
> > but they certainly weren't going to be suing Linux distributors. Then
> > they sued IBM, but they said they didn't have any plans to sue other
> > Linux vendors like Red Hat or SuSE. Now they're talking about "a day of
> > reckoning" for Red Hat and SuSE -- ostensibly about issues other than
> > IBM bringing SCO IP to Linux, since that would be strictly between SCO
> > and IBM. 
> 
> Well, I don't know. It would depend upon who know what and when -- that
> would be, I guess, SCO's position in pursuing the matter. How RH or SuSE
> would have known about something like that, if it occured, is beyond me,
> and certainly, had they known, I'm sure they would have refused to use the
> code. How much insulation that gets them (in the unlikely event that SCO
> IP is in use) WRT civil liability, I don't know. IANAL, so I can only
> guess that even in civil law, there has to be some "knowledge
> aforethought", and intent to defraud.

That would be my take on it. 

One good thing may come out of this, Linus and other project leaders may
start making people who submit code "sign" something to verify that they
are certifying that the code they submit is theirs and that they are
turning over copyright or permission to use the code. 

> > While one SCOster is claiming that they've found SCO UnixWare code in
> > the Linux kernel, another was quoted recently as saying that it
> > definitely didn't involve the Linux kernel. They can't even get their
> > lies straight amongst their executives. 
> 
> Sounds sorta like flailing to me.

Yeah... Like I said, the waiting is really pissing me off -- I want to
see this go to court and I want to see what proof is offered by SCO. I
have a feeling that when that's made public, they're going to be ripped
to shreds... but I could be wrong. 

Zonker
-- 
Joe 'Zonker' Brockmeier
jzb at dissociatedpress.net
Aim: zonkerjoe
http://www.dissociatedpress.net