[linux-elitists] Silly SCO Scenarios

Karsten M. Self kmself@ix.netcom.com
Sun Aug 10 16:53:23 PDT 2003

on Fri, Aug 08, 2003 at 03:01:56PM -0600, Jonathan Corbet (corbet-elite@lwn.net) wrote:
> I *hate* this feeling that, because SCO's actions seem to lack sense, I'm
> missing something important.  

Note that the company in this case is the successor organization to
Caldera International, Inc., not the successor organization to The Santa
Cruz Operation.  Caldera only changed its name to "The SCO Group" in May
of 2003.  The earlier SCO continues operations as "Tarantella".  I
strongly urge all to refer to the litigant involved in actions with IBM,
Red Hat, and others (yes, there are others) as "Caldera/SCO", and at the
very least as "The SCO Group, f/k/a Caldera International, Inc.".  Note
that as Caldera, the company has over a decade's familiarity with
GNU/Linux, including distribution of same under the terms of the GNU
GPL. </soapbox>

Not in the legal sense, IMO.

I do suspect there's some interesting backstory going on, and the
politicking and infighting would make for a somewhat interesting story
at some point.

> So, I'd like to share a scenario has been going through my head when I
> would have been better off sleeping.  But first, some formalities are
> in order:
> 	The following scenario is made available under the Open Paranoid
> 	Ravings License v3.2.7 (no other version, you never know what they
> 	might slip in there) in the hope that it will be amusing and, with
> 	luck, not complete balloon juice.  It may be redistributed, and
> 	combined with other ravings without regard to ideology, good taste,
> 	or logical consistency.  All warranties with regard to any relation
> 	to reality, public humiliation, or mind warpage are explicitly
> 	disclaimed.  No indemnities are offered; you have no alternative
> 	but to think for yourself.
> OK.  I believe most readers of this list would have little difficulty with
> the following Findings Of Fact:
>  - SCO would be delighted if it could convince a court to state that, not
>    only has "its" code been copied into Linux, but it has been mixed in at
>    such a fundamental level ("SMP") that there is no way to remove it.
>    Besides, they claim an inability to even tell us where the problem code
>    might be.

Possible, but unlikely.

Copyright concerns expression.  Not function.  Not ideas.  Not
end-results.  But expression, citation, copying, distributing, a
specific form of a work.  This gets morphed somewhat through case law
and is sorely distorted in certain recent portions of Title 17 (taking
the US centric view for this instance).  There's unfortunately no
provision I'm aware for countering judicial malpractice barring
impeachment and in some cases (anyone remember Graylord?) corruption
investigations.  But any judge making any such determination would
likely stand an excellent chance of having the ruling overturned on

In fact, the very conclusion somewhat argues against the merits of this
tack:  if the functionality (note:  functionality, not expression) which
Caldera/SCO claims is their God Given IP is so tightly coupled in any
other operating system that it cannot be distinguished from
Caldera/SCO's System V Unix, then the copyright argument is almost
certainly waived.  This is very nearly the precise precedent set in Sega
vs. Accolade, which ultimately hinged on some 40-odd bytes of code at
the start of a game cartridge sequence, whose role was found to be
functional, rather than expressive.

>  - SCO has embarked upon a licensing scheme that, if the company ever
>    succeeded in making it stick, would shut down all redistribution of
>    Linux and kill the whole thing dead.

The "if" is the critical word in that sentence.  But yes, if one begs
the question, the conclusion is Caldera/SCO's apparent goal.

This situation pretty largely highlights the frustration of dealing with
this case:  yes, if Caldera/SCO is in the right, the consequences are
dire.  But there is no credible, substantial argument that this is the
case.  If you have evidence or precedent to present, please do so.

Similarly:  this argument is the equivalent of claiming that all men are
rapists, "because they have all the necessary equipment".  To which one
very quick-witted subject responded to his female interviewer, "then
you, ma'am, are a whore".

So, what are the obvious question beggings we can run past journos and
the like?  "What if <shill> is really on Caldera/SCO's payroll?".

>  - SCO's attacks on the GPL are on the increase.  It's response to IBM said
>    that IBM needed to "move away from the GPL."  Our Buddy Darl is full of
>    blather on how the SCO case will lead "open source" developers to a
>    Better Way.  Other communications from the company, public and private,
>    have suggested that SCO thinks the GPL may not be enforceable.
> Conclusions that have been drawn from the above facts include (1) SCO wants
> to kill Linux so that it can get back to selling proprietary stuff, (2) the
> whole thing is really a stock pumping scam, or (3) SCO is simply trying to
> be sufficiently obnoxious that somebody eventually buys them off in one way
> or another to shut them up.
> What if all those explanations are wrong?  With imagination and
> sufficiently powerful drugs, it's not too hard to envision that "Evil
> Corporate Plan For Obtaining Vast Riches With Sleazy Legal Techniques"
> (v4.7 or so) could have a sequence of steps reading, approximately:
>  - Get a court to agree that SCO owns parts - large parts - of Linux.
>    Establish that only SCO has the right to distribute this code.

The odds and public evidence are against this.

>  - Claim that the GPL is unenforceable and that SCO is entitled to
>    distribute the Linux kernel as a whole - under its terms.  Find a court
>    somewhere that will confirm this.

This is equivalent to the argument that unstated license terms ==
unrestricted third party rights.  This hurts the rest of the proprietary
SW world more than it hurts free software.  There's a pretty large
school of thought that holds that most terms of most EULAs are
unenforceable, and that licensing, rather than sale, of software, is not

>  - The kernel is now 0wn3d.  Apply taxes accordingly.
>  - Retire to desert island.

As with all your hypos, there's no, nil, nada support for the

Law isn't something that's pulled out of an ass.  It's based on
precedent, or well greased palms.  So long as we're assuming anything
remotely resembling rule of law and precedent, Caldera/SCO has an uphill
fight.  Worse than vertical.

>  - OK, Utah *is* a desert island of sorts; retire to Logan or thereabouts. 
> I can see how, to a certain type of mind, a plan like the above would
> look like a good thing.  If you've risen to a high position in the
> Evil Corporate Planning Department, how could you resist a scheme that
> held out a hope of applying a tax to every Linux installation?  Darl
> himself has said it: it adds up to multiple Sagans of dollars.
> Now, we all know that, even if all went well in the courts, there are
> limits on how well this scheme could work.  SCO could, in the worst
> case scenario, gain some sort of control over a dead shell of code,
> but its soul would be gone.  Linux would not remain valuable for long.
> But the authors of such an Evil Corporate Plan (ECP) would be unlikely
> to understand this.


But in a risk-averse business environment (and all business environments
are risk-averse), the risk is that acceptance of free software,
GNU/Linux or otherwise, in the enterprise, will be put back by several
years.  This doesn't stop you or me from running GNU/Linux at home, or
in our own small businesses.  It does make the task of selling GNU/Linux
services tougher for the independent consultant.  It makes likelihood of
GNU/Linux-specific hardware support less likely.  It helps Microsoft,
and possibly other parties (but we won't mention Sun by name).  All of
which more or less precisely tends to piss me off.

The counter is to insist that those who insist on repeating or spewing
such FUD back their allegations.  This includes the Laura DiDios, Daniel
Lyons, Thor Olavsruds, and other "analysts" and "journalists", d/b/a
Caldera/SCO parrots, out there.

> Humor me for a moment - I'm just a frustrated science fiction author,
> after all - and assume that the ECP exists in this form.  In such a
> situation, the GPL becomes one of the main obstacles to bringing the
> ECP to fruition; imagine how much easier it could be if Linux carried
> a BSD license.  As long as the GPL holds, Linux cannot be hijacked in
> this way; it can only be killed.
> Bottom line (serious, now): attacks by SCO (and others) on the GPL should
> be taken seriously.  It has become one of our most important lines of
> defense.  Watch the GPL rhetoric carefully; I predict it will get worse.

Yep.  Will in all likelihood prevail though.


Karsten M. Self <kmself@ix.netcom.com>        http://kmself.home.netcom.com/
 What Part of "Gestalt" don't you understand?
    "I repeat, all planet leave is cancelled. I've just had an unhappy
    love affair, so I don't see why anybody else should have a good
    -- HHGTG
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