[linux-elitists] [mds@hsmds2.prnewswire.com: SCO Suspends Distribution of Linux Pending Intellectual Property...]

Karsten M. Self kmself@ix.netcom.com
Wed May 14 23:06:23 PDT 2003

on Wed, May 14, 2003 at 02:09:21PM -0700, Don Marti (dmarti@zgp.org) wrote:
> Me: So what do you mean by "intellectual property" here?
> It has to do with the actual source code.
> Me: In the kernel?
> In the kernel.
> (Now trying to get someone quotable.)

Some arbitrary commentary, more conjecture than observation, do what you

First, IBM developers identified in the 2.4.20 kernel sources via grep:

      1 Allan Trautman
      2 Anton Blanchard
      3 Carsten Otte
      4 Dave Engebretsen
      5 Dave Perks
      6 David Engebretsen
      7 David Gibson
      8 Fritz Elfert
      9 Ganesh Venkitachalam
     10 Ken Aaker
     11 Kyle A. Lucke
     12 Mike Corrigan
     13 Normunds Saumanis
     14 Paul Mackerras
     15 PPC64 Team, IBM Corp
     16 Robert L Holtorf
     17 Todd Inglett
     18 Troy D. Armstrong

Second, there are several known revision control archives of kernel
sources dating to the 1998 and prior timeframe.  Contact me for

Third, I'm noting that the SCO case has tended rather spectacularly to
have an incredible shrinking scope.  Initially it was wildly broad
"intellectual property" claims, interpreted by many to mean patents.
Don blew that out of the water by noting SCO had none (their 2002 10-K
says as much).  Then it was the preposterous writ of sorrows that ESR
and I demolished.  We're left with the copyright claims, and possibly
trade secret / breach of contract.  However copyright claims are 
strongly tainted by the fact that SCO has been distributing the same
work itself, under the terms of the GPL.


Fourth, read the 10-K.  There's some interesting stuff there, financial,
forward-looking statements, relationships, and properties, including
the IP claims, early notice that SCO was going to pursue IP licensing
revenues, and a pretty strong risk statement that the company was not
profitable, could not continue as a going concern, and might not be able
to secure funding.  There's more stuff of interest, if you look closely.


Fifth, SCO have proprietized GNU/Linux.  

I'd like to underscore the emphasis on that statement.

I have been working on an item for the past several days suggesting that
SCO distributing GNU/Linux while claiming others cannot do same is
effectively proprietizing Linux, and a brazen GPL violation.  Given that
just yesterday, SCO's Chris Sonntag was saying: 

    No we do not [have an infringement problem distributing the Linux
    kernel], because you do not have an infringement issue when you are
    providing customers with products that have your intellectual
    property in them.


Today, we see a complete about-face.  My read:  SCO realized that
distributing GNU/Linux while pursuing their case against IBM (and
apparently other parties) put the company in a power dive, rather than a
a mere death spiral.  The initial complaint doesn't even recognize the
fact that the kernel code is _copyrighted_:

    80.         Any software licensed under the GPL (including Linux)
    must, by its terms, not be held proprietary or confidential, and may
    not be claimed by any party as a trade secret or copyright property.


As I pointed out in my prior commentary, this is grossly false.  SCO
apparently believed its own complaint.

I was planning on expanding on this to note that there are numerous
implications of this, including DMCA takedowns under 17 USC 512 by
copyright holders in the work itself.  Linus has followed a policy
markedly different from the FSF in securing copyright to the kernel --
he's intentionally left it vague (charitably), or a mess

Given that SCO are currently announcing intent to continue support of
their existing Caldera clients, DMCA and other copyright provisions may
yet be used against both Caldera and its clients.  The problem boils
down to SCO's insistence that it can distribute, modify, and copy, the
Linux kernel, while denying others the same right.  This is imposing
additional conditions on the GNU GPL, expressly prohibited in section 4
of the GPL.  The same section provides that "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."

However, given the terms SCO are imposing on the kernel, these parties
cannot remain in compliance.  While the GPL doesn't restrict use of
software, it would seem that SCO licensees would be in material GPL
violation were they to modify, copy, or distribute the kernel.  US
copyright law provides several exemptions to authors' rights, however
these are predicated on being a "lawful owner", which would seem cast in
doubt.  Practically, would mean:  no building new kernels or modules, no
migrating systems to new machines, no migrating kernels to new disks, no
downloading new kernels or modules, no uploading kernel sources, and no
creation of backups or archives of kernel archives.

There would seem to be an amnesty/marketing opportunity for other Linux
distributions in this regard, the stick being enforcement of those
vendors' own kernel contributions.

SCO's own right to copy, modify, and distribute the kernel would be
similarly restricted, putting the company's ability to fulfil its
support obligations in some doubt.

Sixth, the point that Don raises about possible infringement, plagiarism
in the kernel source is a significant one.  There's a strong question as
to where culpability lies.  In scenario evaluation when I was helping
manage a corporate free software development project, one stipulation
was that the contributor who knowingly and willfully submitted work
under false pretenses was committing a fraud.  In that scenario,
contributor agreements specifically stated this.  Linus's code
management practices are significantly more lax, and might put him at
personal risk.  If IBM has facilitated transfer of code or secrets
gained in confidence from SCO, there is a significant issue.  Frankly,
the (d)evolution of this case, the shifting and vague claims by SCO, and
decades of cross-contamination between all flavors of Unix, makes this
a tenuous assertion.  

Too, in copyright, independent creation is a defense (unlike, say,
patent law).  Copyright forbids direct copying, it doesn't proscribe
independent arrival at a similar engineering conclusion.  For SCO to
prove its case, verbatim similarities are not sufficient, a plausible
chain of derivation is necessary.

I'll point out as others have that the risk of transfer in the other
direction -- from GNU/Linux to a proprietary product -- seems rather

If there *is* unauthorized transfer of code into GNU/Linux, the
developers responsible should be banished.  They are putting not only
themselves, but the entire project, vendors, and users both individual
and corporate, at grave risk.  Free software is, ironically, strongly
tied to a respect for copyright.  This case has the potential to shake
up that relationship considerably.  While I don't particularly doubt the
outcome regarding Linux, side-effects could be interesting.

Seventh, (pure observation, largely on strategy) SCO's general behavior
in this whole thing is reminiscent of the good old days -- earlier this
year when the Iraqi press minister would spin yarns to entertain his
western guests.  I'm seeing the same mix of bluster and innuendo that
marked pre-war Iraq.  Whatever you think of the war itself, there's no
question that Iraq over-promised and under-delivered.  SCO seems to find
itself in the same position.  The company is backed into a corner and is
finding its footing cut out from under it.  The vaunted lawyer, Boise,
could badly use either a paying or a winning client.  With the smell of
a bankrupt loser in the air, I suspect he won't stick around long, and
by the look of the original complaint, the quality of his contribution
was poor at best.  IBM need not do much at this point, IMO, publicly,
other than make pro-forma filings necessary for legal action.
Internally, I suspect there are preparations afoot.  I've hinted at
actions both other GNU/Linux vendors, and kernel developers, might want
to consider.  I'm not a lawyer, but I would like to point out that there
are many tools, and strong protections, within the GPL itself.  While I
see bitter struggles if SCO insists on continuing to publicly
demonstrate its suicidal tendencies, the likely outcome is either the
outright destruction or acquisition of the company, largely stripped of
any value, for a pittance.

Standard license for my works regarding this issue:

   IBM, its agents, legal counsel, supporters, and those defending IBM
   and/or any other parties against SCO in this matter, have full and
   unlimited rights to use, modify, adapt, copy, and distribute this
   work.  I'm not a lawyer, and this is not intended in any way to be
   taken as legal advice, but if there's any possible way I can help out
   in this effort, I'd like to do so.  As someone who's devoted a fair
   portion of time since 1997 to understanding legal, economic, and
   social aspects of free software, I'd like to put this information to
   some practical use.  I encourage all others engaged in free software
   support and development to do similarly.

   Additionally:  I expressly withhold any grants under copyright to
   this work to SCO, Caldera, its agents, legal counsel, supporters, or
   any other parties acting on their behalf in this matter.  Violations
   of my copyrights will be pursued.

> ----- Forwarded message from mds@hsmds2.prnewswire.com -----
> Date: Wed, 14 May 2003 16:31:24 -0400
> From: mds@hsmds2.prnewswire.com
> Subject: SCO Suspends Distribution of Linux Pending Intellectual Property...
> To: mds@hsmds2.prnewswire.com
> Reply-To: mds@hsmds2.prnewswire.com, news@prnewswire.com
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>        SCO Suspends Distribution of Linux Pending Intellectual Property
>                                 Clarification;
>               Announces Greater Focus on UNIX and SCOx Strategy
>  SCO Suspends Sales of Linux, Alerts Customers That Linux Is an Unauthorized
>   Derivative of UNIX and That Legal Liability May Extend to Commercial Users
>  SCO Reaffirms Commitment to SCOx, SCO's Growth Strategy Through Web Services



Karsten M. Self <kmself@ix.netcom.com>        http://kmself.home.netcom.com/
 What Part of "Gestalt" don't you understand?
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