Friday, June 13, 2003
The Smoking Gun
I am reading a Caldera white paper that used to be available on the Caldera web site, referenced earlier. (Look for the headline "Sue Me? Sue You? It's just above the picture of the pirate.) I got it from another site that still has it available. My jaw is hanging open.
SCO in its complaint charges IBM with stealing its System V code and putting it into Linux. However, the white paper, "Caldera Gives You a Choice -- Linux and UNIX Are Coming Together," dated March of 2001, on page 25, says that merging the System V code, by then renamed UnixWare, with Linux was Caldera's plan:
"Caldera's plan is to unify SCO UnixWare with Caldera's OpenLinux to create an LSB-compliant operating platform that will combine UNIX scalability with the application support of Linux to provide a common build environment for solutions that scale up or down, depending upon the business need. Caldera gives you a choice."
And now they are shocked, shocked to find identical code from System V in Linux? They said they were going to put it there themselves as part of their plan to scale Linux up, if I have comprehended this document, and I believe I have.
Is your mouth hanging open yet? It gets better. On page 14, it says:
"If there were an operating environment that scales from thin Internet clients, for instance, to the large data centers of giant corporations, that operating environment would attract the attention of software developers and users alike. Caldera plans to provide such an operating environment. A major factor in our pending purchase of the SCO the Software Server Division is to acquire the UnixWare technology....
"Caldera has begun the task of uniting the strengths of UNIX technology, which includes stability, scalability, security, and performance with the strengths of Linux, which include Internet readiness, networking, new application support, and new hardware support.
"Caldera's solution is to unite in the UNIX kernel a Linux Kernel Personality (LKP), and then provide the additional APIs needed for high-end scalability. The result is an application 'deploy on' platform with the performance, scalability, and confidence of UNIX and the industry momentum of Linux."
So, now where do you think that identical code might have come from? And why ever would SCO want to take this document off of its site, do you suppose, when it is so very clarifying?
You might like to look at their chart also, Figure 5 on page 12, "UNIX and Linux Market Projections, 2000-20004". The UNIX line is flatlined along the bottom of the chart, while Linux's line goes up and up and up across the page at approximately a 90 degree angle. Some "bicycle".
Well, if this isn't a bit chilling: A MS guy says that the SCO lawsuit is just the beginning. In discussing how MS plans on competing against Linux, he lists several arguments they plan on putting forward to customers, and then he says this:
"And there's a significant intellectual property and patent issue if you broadly adopt open-source software. The lawsuit of SCO against IBM, and now against the Linux community, is the first visible and public manifestation of intellectual property and patent rights."
He also says this about proprietary software:
"And finally, we've got to ensure that the model of commercial software is one that is prevalent. Because if people don't pay for intellectual property, our model doesn't work."
Plain talk, I'd say. This begs the question: What is the next salvo, if this is just the first? And the next question: how do you know that more is in the wings? And are you sure you aren't behind this? They said they weren't, and MS would never... um... lie, or anything, right?
Puzzling over which is better, free or proprietary? Wonder what business life will be like if Linux is crushed? Take a gander at this article in today's Washington Post, "Rivals Say Microsoft Flouts Deal", to find out how things are going in enforcing the DOJ's antitrust settlement.
"Portions of the agreement require Microsoft to reveal more of its computer code to other software developers to ensure that their programs will work properly with Windows. One unusual provision, however, allows Microsoft to license some of the code -- known as communication protocols -- to outside companies on 'reasonable' and 'non-discriminatory' terms. "
Here's MS' definition of "reasonable" and "non-discriminatory": you can't see MS code unless you pay a fee ($100,000). This is just to find out if you want to license it. If you don't, MS keeps the change ($50,000 . . . because you got to see their precious IP, silly.) Also, you have to sign an NDA so strict that they say it could hamper your employees who look at it from being able to work for you afterward. (Say, that sounds familiar.) And you have to agree that if you do license, you agree to be audited by a third-party auditor that MS gets to pick but you get to pay for, to assure MS that you are using their code appropriately only.
No wonder businesses are switching to Linux.
This Article Explains What Could Happen Monday
This excellent article by Stephen Shankland explains very clearly what SCO might, could, should do on Monday if IBM doesn't settle. Several attorneys give their opinions and SCO gives some hints. "If" seems silly to write. "When" they don't settle seem a better choice of words. So far, IBM shows no sign of wishing to settle.
The article mentions SCO possibly seeking a preliminary injunction. Here is 'Lectric Law Library's definition of what that is. For a walk down memory lane, and because Darl McBride keeps calling Linux users pirates and using Napster as a metaphor, here is the preliminary injunction that was granted against Napster. You'll see that basically a preliminary injunction is what the judge orders to happen while the trial proceeds. If you can convince a judge that the person or entity you are suing, if allowed to continue unchecked, will harm you so badly by the time the trial can be heard that you could never be made whole, and that you have a case, then you may be granted a preliminary injunction.
More precisely, you are supposed to get a preliminary injunction if you can show a "(1) probability of success on the merits and a possibility of irreparable injury, or (2) serious questions going to the merits and the balance of hardships tipping sharply" in your favor. -- Chalk v. United States Dist. Ct., 840 F.2d 701, 704 (9th Cir. 1988).
If money can make you whole at the end of the trial, it's not normal to be granted a preliminary injunction. That is the problem SCO faces, that it may just have to wait for the trial to end before it can get any relief, if then, because money presumably can make them whole. That is, after all, what they are asking the court to give them, unlike the Napster situation, where the relief sought was more than money.
Or for another example, Sun won a preliminary injunction against Microsoft in 1998, to stop, or enjoin, Microsoft from shipping their products with an incompatible version of their Java software, the reasoning being that allowing MS to go forward would make it impossible for Sun to ever be made whole, because the deed would be done and undoable. Not that the injunction did Sun much good anyway. But that is an example to explain what kinds of things a judge can do with a preliminary injunction.
Another way to put it would be that the injunction is designed to make sure that winning your case won't be in name only and that the relief you seek will still be available to you at the end of the trial. This from Steven E. Shapiro's article "Preliminary Injunction Motions in Patent Litigation":
"An injunction is 'an order that is directed to a party, enforceable by contempt, and designed to accord or protect some or all of the substantive relief sought by a complaint in more than temporary fashion.' [n2] A preliminary injunction is a provisional injunction issued pending the disposition of a litigation, [n3] the purpose of which is to 'preserve the status quo and to protect the respective rights of the parties pending a determination on the merits.' [n4]
[n2] Gon v. First State Insurance Co., 871 F.2d 863, 865 (9th Cir.1989).
[n3] See Fed.R.Civ.P. § 65.
[n4] Cordis Corp. v. Medtronic, Inc., 835 F.2d 859, 863, 5 U.S.P.Q.2d 1118, 1121"
Sometimes a judge might require the party being sued to put up money in escrow so that there is a guarantee that the suing party will have something to take home with them, but that seems unlikely here, where it'd be hard to argue that IBM will run out of money before the case can be heard. Or ever. This, of course, is what makes them an appealing target for a lawsuit.
GPL or Copyright Law -- Pick Your Poison
SCO has been saying that they didn't know they were releasing under the GPL. What if that were true? Then it would mean that they never had the right to release a Linux product in the first place. If the GPL is found invalid, then you revert to copyright law.
Now here is the detail that just occured to me: Linus Torvalds isn't the only individual who has contributed to the kernel and his policy is, or at least it was the last time I looked, that each contributor retains his or her own copyright rights, even though the kernel itself is under GPL v2. So... if SCO released a product outside of the GPL, then couldn't any of the copyright holders bring an action for copyright infringement against SCO? Any attorneys out there?
Another helpful reader noticed that in my article on Wednesday I mentioned that some of SCO's press releases were no longer findable. He stepped up to the plate and has sent some further links, all showing, as did my Wednesday post, that SCO's claims that it didn't know it was releasing under the GPL don't seem to match the historical indications. If they didn't know, then a lot of their public statements were made by incompetents at best. What are the odds that their lawyers and/or coders never explained to them how the GPL works? Or that the management just never thought to inquire? Here are the links he sent. You'll notice in one that their then-PR director mentions Linux being "open source":
SCO and Industry Leaders Establish Free Standards Group
SCO to boost revenue by offering Linux services
Caldera Systems expands Unix acquisition plans
With eight-way SMP, Linux now ready for enterprise 'prime time'
Note: from April 1999
SCO grasping at the Linux straw?
Note quote from SCO PR Director: "We embrace the Linux movement, It's open source, which is where Unix came from, and it encourages innovation, not stagnation," said SCO's PR director Brian Ziel in a e-mail. "Developing for Linux is developing for Unix."
Because the first link takes you to a page with quite a lot on it, here is what it says in full, and as you read it, ask yourself, did they know or didn't they?
"SCO and Industry Leaders Establish Free Standards Group
SANTA CRUZ, CA May 10, 2000 - The Santa Cruz Operation, Inc. (SCO) announced today it has become a charter member of the Free Standards Group, an assembly of industry-leading companies driving to establish the Linux Standard Base (LSB). SCO has been involved since late 1999 in an effort to standardize Linux. LSB is designed to help the Linux market reach a new level of maturity and give ISVs a single target port rather than multiple ports for multiple platforms. Currently, there are minor variations among Linux distributions that make it difficult for ISVs to support Linux. The ultimate goal of the LSB is to provide a single, standard reference that will allow vendors to reap the benefit of seeing greater ISV support for Linux.
"Charter members of the Free Standards Group include IBM, LinuxCare, Sun, Red Hat, VALinux, Caldera Systems, TurboLinux, SuSE and others. Specifically, the LSB project consists of Linux developers, users and companies who have a vested interest in the overall success of the Linux market and share SCO's goal and vision of standards and interoperability."
Could the Identical Code be From Contributions from SCO Employees Themselves? A Reader Names a Name
I received email from a reader, a developer named David Mohring, who presents the following evidence that SCO employees contributed code to the Linux kernel:
"Developers such as Jun U Nakajima of SCO's Core OS Development team, SCO/Murray Hill, NJ, as well as other SCO and Caldera employees, contributed advice and patches to the Linux kernel, directly and though the Mailing lists of both the Linux-IA64 and the Linux scalability project. Jun U Nakajima was aware of NDA (Non-Disclosure-Agreement) issues, as
this thread to Usenet proves.... Note that in the same thread, Jun admits that he was using stable 4-way SMP systems Linux and has seen a demo 8-way system in the middle of the year 2000: 'Today 2.4.0 SMP kernels run on SMP IA-64 platforms (e.g. 4-way) reliably. I'm using such systems for heavy-duty software developement. We had a demo using an 8-way IA-64 machine last Summer.'
"Many SCO and Caldera employees directly contributed to the development
of enterprise scale Linux, before, during and after Caldera made it's
purchase of SCO's Unix division.
"Jun U Nakajima sometime in 2001, went to work for Intel, and even today he is successfully performing the same job he did when he was employed by Old SCO and then Caldera, improving the scalability of Linux on the new Intel processor platforms. In 2002, Jun U Nakajima and Venkatesh Pallipadi, also from Intel, presented a paper to a USENIX conference. As with all the Linux kernel work, the result of all the above work has been incorporated into the main Linux branch at the discretion of Linus Torvalds."
There is quite a bit more to the email. He has now posted it online and you can read his take on the history of SCO and AIX here.
I'm trying to figure out how to make it possible to post comments here, but because following the instructions hasn't worked, I will now have to dig a bit deeper, but that is my goal.
This isn't the first person to bring this issue into the spotlight. I again turn you to this eweek article, "Did SCO Violate the GPL?"
Sue Me? Sue You?
In an article "Sue Me? Sue You? SCO, Linux & Unix 18 May 2003, by Steven J. Vaughan-Nichols, the author points to this smoking gun:
"But what Caldera did do, as described in a Caldera white paper dated March 8, 2001, with the then new tag-phrase of 'Linux and UNIX are coming Together' by Dean R. Zimmerman, a SCO writer, was to try to merge the best features of both operating systems. Early on there's a line that fits perfectly with open source gospel. 'For a programmer, access to source code is the greatest gift that can be bestowed.' And then, getting straight to the point, Caldera declares: 'Caldera has begun the task of uniting the strengths of UNIX technology, which include stability, scalability, security, and performance with the strengths of Linux, which include Internet-readiness, networking, new application support, and new hardware support. Caldera's solution is to unite in the UNIX kernel a Linux Kernel Personality (LKP), and then provide the additional APIs needed for high-end scalability. The result is an application 'deploy on' platform with the performance, scalability, and confidence of UNIX and the industry momentum of Linux.'"
Naturally, I wanted to read this white paper. However, since the article about this white paper was put online, Caldera has removed it and you can't get it any more. Press releases disappearing, now white papers. What's the deal? Rewrite of history? It used to be here: www.caldera.com/images/pdf/volution/linux_unix.pdf . Maybe it'd be a good idea if everyone who wishes to downloads for safekeeping whatever they find that interests them, because it may be disappearing fast. That's what I just did after I found the white paper on another site.