Monday, June 9, 2003
One GNU-Darwin Guy Thinks He Knows Which Code It Is
Robert J. Dohnert has written an article for OSNews. In it he says he figures the disputed code must be related to LVM and SMP:
"Shocked that I figured out what code SCO was complaining about without looking at code. You are thinking, 'This guy is crazy' or 'He is fishing' But if you think about it the height of SCO's complaint is that Linux surpassed UnixWare in the Enterprise Sector. For an OS to survive in the Enterprise sector what does the OS need:
"Strong SMP support -- How well it handles multiple processors
Strong LVM support -- How well it handles Logical Volumes
Support for devices users are realistically expected to use -- USB, Firewire, Audio, Video, Application Support
" SMP and LVM was present in UnixWare before Linux had it, Although UnixWare did not handle SMP very well at all, LVM was okay but it is nothing like what Linux had before. That is all UnixWare had. Device support, as stated before, was superior in Linux long before it was even present in UnixWare and device support in Linux is better than what UnixWare ever had. Cost is an issue and Linux will always be cheaper than Unix, and retraining IT personnel from a Unix based system to Linux based systems is nil and takes very little time. Application support is a non-issue as well, it is much easier to port a custom Application from Unix to Linux than it would be to port a custom Application from Microsoft Windows to Linux. So in the end, LVM and SMP are the only two things that Unix had over Linux."
If he's right, I find this page of interest, because it says about SMP: "The initial port was made possible thanks to Caldera Multiprocessor Linux Kernel Development."
Meanwhile, SCO's McBride sounds like he wants to sue Novell for claiming copyright rights. This guy is a riot. The not-funny part is what he is now saying about patents, according to the article:
"On the question of patents, McBride said Novell's name isn't on the Unix patents, but rather AT&T Corp.'s, which is the company that first developed the operating system. The patents are enforced by the copyright holder, which in this case is SCO, McBride said."
And what does SCO say users of AIX should do when the Friday the 13th deadline comes? (Yup. Friday the 13th is the deadline for IBM. SCO really has absolutely no PR sense at all.):
"SCO did not comment on what it would expect AIX users to do if an agreement failed to be reached by Friday. But it warned of possible repercussions for Linux users.
"'We maintain that Linux users should obtain opinions from their own counsel to guide their actions,' said McBride.
"Analyst firm Gartner is advising AIX users to ask IBM if it will indemnify them against any potential legal action."
My take on this is, after reading the article, that SCO would like everybody to pony up for a license right now, and then after they lose the IBM action, you'll be contractually stuck anyway. Of course, IANAL. Get one, if this AIX stuff applies to you.
In a separate story in eweek, called "Linux Goes Ka-Ching", which mostly deals with companies turning to Linux in droves, I found this thought on why MS might have signed the license with SCO, that it's in part about POS systems:
"Indeed, Microsoft, of Redmond, Wash., still claims many retailers as customers of its Windows XP Embedded operating system. Last month, for instance, it announced that electronics vendor Circuit City Stores Inc. will deploy POS systems using Microsoft software at 600 stores. In addition, some analysts said that Microsoft's move last month to license The SCO Group's Unix patents was motivated in part by the desire to persuade the installed base of SCO Unix users with POS systems to migrate to Windows instead of Linux. "
And finally Linus on contribution cleanness:
''For copyright infringement, the best protection is the fact that the code is open. Think of it like stealing a car: as a potential car thief, would you do it in full daylight with a lot of people looking on, or would you prefer to do it when nobody is watching?''
The article says this is what SCO is claiming happened, that IBM boldly stole the code, but Linus finds that hard to believe, asking in effect what would the motive be? ''Sure, it could be done,'but what would be the point? It's not like I pay these people on a `per line written' basis.'' The author of that article seems to find it more possible than Linus does. If he is right, it would indicate a need for more care choosing friends and making sure any corporate help is actually helpful, that they really get what open source is about. Dohnert says this:
"One of the things that has come of this case is the need for Copyright and Patent protection from the Linux community. It is an issue that will have to be addressed and Linus should form a team that Copyrights and Patents are their sole responsibility. Also, developers document everything you do and submit. I know doing documentation stinks, heck I hate doing changelogs myself but it needs to be done. Make it hard for SCO or any other company to come up and say that you are infringing their patents or copyrights."
That, of course, is already in place at FSF.
I've Got Mail
I got an extremely thoughtful and info-filled comment from a reader who sent me a post he made to Slashdot, which I didn't see, asking me some followup questions. So here you go, one by one:
Q: what about http://www4.law.cornell.edu/uscode/17/411.html? Doesn't the infringer have to give 48 hours notice?
A: If you look at the referenced statute, Title 17 Chapter 47 Sec. 411, you'll notice that it is basically talking about live performances of "sounds, images or both" where the first "fixation" is in real time performance. Live music performances, for example. That wouldn't apply to software. Or more accurately, that wasn't what Congress thought they were talking about in this section and I've no knowledge of it being used for software. The actual wording is:
"(b) "In the case of a work consisting of sounds, images, or both, the first fixation of which is made simultaneously with its transmission, the copyright owner may, either before or after such fixation takes place, institute an action for infringement under section 501, fully subject to the remedies provided by sections 502 through 506 and sections 509 and 510, if, in accordance with requirements that the Register of Copyrights shall prescribe by regulation, the copyright owner -
serves notice upon the infringer, not less than 48 hours before such fixation, identifying the work and the specific time and source of its first transmission, and declaring an intention to secure copyright in the work; and (2) makes registration for the work, if required by subsection (a), within three months after its first transmission."
Q: wouldn't SCO have to reveal the offending file to ISPs if they sent a notice of infringement to them as per Title 17, Chapter 47, Section 512, http://www4.law.cornell.edu/uscode/17/512.html and if the web site offered the kernel on a file by file basis?
A: Yes, if I understood the question. If the ISP is hosting a site offering the kernel on a file by file basis, they would have to identify the offending file. But they may be offering a CD instead (think RedHat or Mandrake) or in addition to file by file downloads. Still, the reader is correct that they are supposed to identify the precise infringement. They have to be precise enough so that the ISP knows what needs to be removed to solve the infringement. But the file by file arrangement would absolutely force them to identify the file if they wanted it removed. My question then is: could you do that? Break the kernel into individual files? If so, that'd work, I think. Very creative idea. However, it doesn't seem to me it'd be necessary. By now, I'm sure IBM knows what the "offending" code is, even if they can't tell us. You have to reveal things in the discovery phase of a lawsuit, and that is no doubt going on right now. And anybody else under a license arrangement with SCO could conceivably figure it out by just doing what SCO did, looking for identical code. My understanding of the complaint is that they intend to bring into the argument not only identical code, though.
Q: Isn't it true that Linus and developers couldn't be held liable for infringement if there is no notice? http://www.pnpa.com/legal/handbook2/copyrights.htm
A: Yes, that is true to a point, as far as statutory damages and attorney fees as concerned. But as I pointed out earlier, infringers, even innocent ones, are still liable for actual damages, if they can be proven. If SCO can prove that they actually lost money from the infringement, and that is a big if, then there could be liability to that extent. However, suing with little or no hope of collecting meaningful amounts isn't what lawyers usually do. Unless Linus and the other developers have reeeeally a lot more money than I know, that scenario seems unlikely. Or more exactly, SCO could sue individuals for infringement and ask for money damages, but the relief they would ask for would be more likely an injunction. Of course, if they intend to follow in RIAA's footsteps in all respects, then who knows? Maybe they will go after everybody's life savings. SCO is free to do that too, if they ever conclusively prove they have copyright rights and that there is an infringement. Copyright is powerful. I don't even want to think about the criminal sanctions possible if they prove their points and then somebody continues to offer infringing software. The bottom line, to me anyway, for the future is: use the GPL and transfer your copyrights to FSF. They have the abilitity to legally take on such battles, where you might not, and they wrote the GPL. They also have a process to weed out any contaminated code. Deeper, they invented the GPL, so they know how to use it best. And don't steal code, obviously, or obfuscate it to conceal a theft. If anyone did it in the past and he or she knows it, I'd hope that person would fess up to Linus and/or FSF and tell them exactly where, so they can fix it asap. I realize that it is highly unlikely anyone did that, but just in case.
The next point the reader raises is this:
"Also, what about the downstream effects of the GPL implict licensing. SCO has sold and distributed under the terms of the GPL license. That covers everything GPL'ed up to and including the kernel-2.4.19 . SCO have admitted that they knew about the "common" source months before they started the lawsuit, but kept selling and distributing openlinux. Does the former action imply implicit consent? Remember that both Caldera and SCO have been distributing GPL'ed source code
for almost a decade - How could they deny that SCO and their lawyers don't understand the terms conditions?"
I addressed this earlier. I personally believe they can't deny knowing. They are claiming it wasn't "authorized". Check out my posts for the dates June 7 (Gigalaw quotation), May 23 (Somebody Doesn't Grok the GPL), May 19 (links to GPL info from SCO's sites), Friday, May 18 (Moglen Confirms GPL Boomerang), and May 17 (first post on SCO, with rms quote and Gartner on GPL). What I notice is SCO hasn't yet said anything on the GPL point. Either they don't understand it (the new management) or they understand it and don't want to speak to it now because they have no answer, or because they plan on attacking it. You be the judge after you read all the info I collected. It's my understanding from something Kuhn said that FSF has paperwork from Caldera when they contributed code under GPL.
Next the reader writes:
"For the current development kernel, it's currently still in beta development and is not being deployed in a commercial capacity. There is effectively no damage to SCO's Unix "Market-share" and SCO's disclosure and proof of "ownership" of the offending source code would allow Linus to remove it from the source repostory. The missing gaps would quickly be rewritten."
Yes, that's the solution. Take out the code and replace it. That doesn't wipe out prior damages, actual damages, in this case, but it fixes the problem once and for all for anyone who isn't in a contractual relationship with SCO. As for not damaging anyone's market share, that definitely helps with any actual damages a judge might order paid. But you still can't copy someone else's work and use it yourself no matter what the end result is financially under US copyright law. Copyright law isn't just about money. It's about ownership rights. You can't drive off with my car even if you return it with a full tank of gas and there is no damage to it.
I wrote an article once and an online mag accepted it. Before it was published online, someone I had shown it to tried to change it just a bit and use it as if it was her writing. No money was involved as far as any loss to me. But I was plenty mad and I used copyright law to stop her, because the ideas in the piece were mine and I had worked hard thinking them up and expressing them in a creative way on a subject no one had written about before, as far as I knew. She thought I hadn't registered the article, but I had, so she realized the theft wasn't worth the lawsuit it would bring on her, so she stopped. Without the registration, she intended to go forward with no shame. Laws are supposed to be about protecting people from those with no shame. It wasn't about money; it was about credit and about fair play. Copyright protects that too. It doesn't say you can copy and use as long as it doesn't hurt the author financially. If you hurt him or her financially, then the law tries to get the money back from you and gives it to the author as compensation. But either way, it stops you. Of course, software and word articles aren't identical as far as copyright issues are concerned, because open standards for articles aren't an issue at all, but this blog isn't about what copyright law should or shouldn't be; it's just about what it is.
Next, he writes:
"Since The SCO Group now admits that it does not own Novell's Unix patents, the rewrite becomes a much easier job."
A: Yes! If SCO had patent rights, my heart would be hurting.
The deeper question I see in what the reader wrote is this: Shouldn't SCO have to show us the code and play fair? And the answer to that is morally yes and legally no, not now. They are likely limiting their financial damages by not showing the allegedlly infringing code now, but they seem willing to let that happen for other strategic reasons. Don't forget that they have made no copyright claims yet against anyone. So far it's all trade secrets and contract violation stuff. So they will protect those claims over any possible copyright claims. They can in theory collect more money from IBM than from Linus, so they will go after them. I am not sure that the fact that there are no copyright claims yet means anything though. Remember that they filed in state court, where a copyright claim would be impossible. However, IBM moved the case to federal court and that is where copyright claims are heard. Conceivably, at some point SCO could add copyright infringement to their claims against IBM.
Feedback is fun. Thank you for the questions.
Here's the Plan, Stan
I found this email to SCO partners, which details what the real deal is, dated last January. Now I understand why they feel impelled to follow RIAA tactics. They are in the same "our business plan is no longer viable, so we must hang on with some rather unpleasant muscle to force technology progress to stop this exact minute" group. All they want is your money and an injunction, if necessary, so you can't use anything better than what they have to offer. Instead of Linux replacing UNIX, which it is rapidly doing, they would like to set up a UNIX toll booth to slow this traffic down, and have a Linux-UNIX hybrid, where you can use Linux, but you must pay a license for high-end UNIX functionality to.... why, to them, silly.
I like their plan better than my own worst-case scenario worries of yesterday, because at least in this scenario, Linux isn't killed off outright. I also like their plan because it won't work. You just can't make people want something less good than what they know they could have if you weren't standing in their way. You can make that work for a while, using the legal system, which always protects the status quo, until the consciousness starts to rise and people start to get it. Then somebody like Apple sets up ITunes Music Store and one judge rules Grokster isn't illegal, and then the game is pretty much over. It is the same for SCO and UNIX. Something better than UNIX arrived. The law can't change that. It just can't. That's not what laws are for.
So, without further ado, here is the memo:
From: "TeamSCO Partner Program"
Date: Wed Jan 22, 2003 8:34:27 AM US/Eastern
Subject: SCO News: SCO Establishes SCOsource to License UNIX Intellectual Property
In an effort to keep you informed of new offerings and services provided by SCO, we would like to inform you of a business division, announced today, within SCO called SCOsource which will manage the licensing of its UNIX intellectual property. SCOsource will manage the substantial UNIX intellectual property assets owned by SCO, and will operate an array of licensing programs.
Key components of this announcement include:
* The creation of SCOsource, a division of SCO that will expand the licensing of the company's core intellectual property, including the core UNIX source code.
* The first offering from SCOsource will be SCO System V for Linux-an end-user licensed product for use on Linux systems. SCO System V for Linux provides unbundled licensing of SCO's UNIX System shared libraries for use with UNIX applications, enabling them to run on Linux.
* The appointment of David Boies and the law firm of Boies, Schiller and Flexner to help research and advise SCO on the company's intellectual property.
** SCOsource **
SCO's patents, copyrights and core technology date back to 1969 when Bell Laboratories created the original UNIX source code. SCOsource will manage the licensing of this software technology to customers and vendors.
"SCO is the developer and owner of SCO UnixWare and SCO OpenServer, both based on UNIX System V technology," said Darl McBride, president and CEO, The SCO Group. "SCO owns much of the core UNIX intellectual property, and has full rights to license this technology and enforce the associated patents and copyrights. SCO is frequently approached by software and hardware vendors and customers who want to gain access to key pieces of UNIX technology. SCOsource will expand our licensing activities, offering partners and customers new ways to take advantage of these technologies."
** SCO System V for Linux **
The SCO System V for Linux license will provide access to SCO's UNIX System Shared Libraries for use with Linux. Customers frequently use SCO's shared libraries to allow UNIX applications to run on Linux. In the past, SCO's UnixWare and OpenServer license agreements did not allow these UNIX libraries to be used outside of SCO's operating systems. With this announcement, customers can now license these libraries from SCO for use with Linux without having to license the entire SCO operating system. This will enable customers to now run thousands of UNIX applications on Linux.
"The most substantial intellectual property in UNIX comes from SCO," said Chris Sontag, Senior Vice President for Operating Systems and SCOsource, The SCO Group. "While Linux is an Open Source product, it shares philosophy, architecture and APIs with UNIX. Starting today, SCO's libraries will be available to third-party application developers, OS vendors, hardware providers, services vendors, and end-users. SCO will help customers legitimately combine Linux and UNIX technology to run thousands of UNIX applications. SCOsource plans to create other new licensing programs to make our rich inventory of UNIX System technology available to the market."
SCO will offer SCO System V for Linux for $149 per CPU. Volume licensing discounts will also be available to enterprise customers and OEMs.
SCO is offering customers of SCO Linux Server 4.0 a license to SCO System V for Linux as a free value-add to their use of SCO Linux. Future updates to SCO Linux Server will include a license to SCO System V for Linux.
For more information, please email the TeamSCO Partner Programs Team at email@example.com or your local Channel Sales Manager.
TeamSCO Partner Program
Here is why the plan won't work. It's too late. Here is an interview with IBM's Linux GM, Jim Stallings, in which he says: "The velocity of Linux adoption is extraordinary. There are no customers who are not either evaluating, piloting or using Linux in production."
He speaks a bit about the SCO thing too: " I believe I am correct in saying there are no violations on any intellectual property issues and we will continue to support our Linux customers. It will be business as usual."
SUSE's CEO adds this: "People don't ask anymore why they should use Linux -- but how and when. Also, the discussion around scalability to high-end machines is going away, thanks to the progress of the Linux technology and thanks to the industry partners and customers that can prove how well suited Linux is for mission-critical, high-demand type applications. There is still ground to cover, but nobody doubts anymore that Linux will shortly get there as well, thanks to the unstoppable innovation power of the community and thanks to the ones making Linux ready for the enterprise....."
This is the juggernaut SCO is trying to stop. And notice in this comparison of various Linux server products that the next kernel, 2.6, is expected to bring "improvements in vertical scalability and mainframe reliability".
So now, like Mama Rose in "Gypsy", after her daughters don't need her any more, SCO is angrily singing, "All I did and what did it get me" and striking back. Bought all that UNIX IP just as it's becoming irrelevant.