Putting some meat on legal news' bones.

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IANAL. I am a paralegal, so if you have a legal problem
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instead. Research is, however, what paras do, so here
I am sharing things I have found in my research.

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Sunday, June 15, 2003

Kernel Coder Puts SCO on Notice of Copyright Infringement
Here Comes the GPL!

The Inquirer is reporting that a kernel developer, currently anonymous, has sent a notice of copyright infringement to SCO by email. As the article correctly points out, there are hundreds of others who have also contributed to the kernel and thus would have similar claims.

On Friday, I mused aloud:

" 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?"

Now someone, evidently in Germany, has had the same thought and is doing it.

The email points out that Linux is still available from SCO's web site. Then the coder points out that as co-author and copyright owner of several parts of the kernel, he released his code solely under the GPL and that SCO is claiming that in that file is proprietary code belonging to them, so their continuing to offer that file is a violation of the terms of the GPL:

"I've granted everyone the right to sell, distribute and use my work under the condition that they obey the restriction of the GPL. The GPL requires that a work that is based on a works that is licensed under the GPL must be put under the GPL. I've never authorized any other use of my work.

"This means that your distribution of the above given file, and any sale of OpenLinux 3.1.1, is not authorized by me and infringes my copyright."

In addition to money damages, the emailer reserves the right to sue the German branch of SCO and suggests as an alternative:

"As an alternative, I'll abstain from suing you for copyright infringement if you drop your claims that the source in linux-2.4.13-21D.src.rpm infringes your copyright, for example by putting the part that you claim copyright on under the GPL. The exact details would have to be discussed."

On June 5th, I posted some other places I was able to find SCO's OpenLinux for sale, including at Tucows,, even from Shop Caldera.

As is not uncommon, SCO too seems to have underestimated the GPL. However, because they are such strong believers in the sanctity of intellectual property rights, no doubt SCO will immediately comply. I'm sure they have no desire to infringe on anyone's rights under copyright while holding that holy banner so high in their own IP Crusade. If not, I'd say the GPL may be heading to court.

comment [] 7:26:50 PM    

IBM Lawyer Hired Away by Microsoft
and a Second Analyst Unconvinced
by SCO "Proof"

I saw this little notice on

"After handling IBM's intellectual property matters for nearly 30 years, Marshall Phelps Jr. has jumped to Microsoft Corp., where he will oversee more than 11,000 trademarks and 3,000 U.S. patents as vice president and deputy general counsel for IP."

He was VP for IP and licensing at IBM. Hmm. How convenient. Do you suppose he knows anything that might be of value to anybody rooting for SCO?

Another interesting tidbit: An analyst in Germany who looked at SCO's proof code and is talking, saying that their lawyer forgot to ask him to sign an NDA, says, I think (my high school German is a lot rusty), that he can't be sure if there is any substance to SCO's claim. One reason is there's no way to verify if the UNIX code is actually System V, because the code was pulled out of any traceable record, and all dates, even on the comments, had been removed. Also, it appears to him that while there were similarities in functionality, there were differences in implementation for some of it.. One section seems to be identical, but who knows which came first, the chicken or the egg? He also noted some differences. My German isn't up to this task, so take a look yourself at the German version here. Google's English translation is here. And here is how Sherlock translates it, with the usual somewhat comical results:

"I had today the possibility of looking at me the loading code paragraph. By a mistake on the part of the representing law office my colleague and I, in contrast to the 7 other assigned one, did not have to sign which received today insight, a discretion assertion. Completely contrary to the examiners of the company Microsoft, who must protect silence obviously even opposite their own superiors, and only the internal audit department in relation to report to refund may. Now, to the code: Under notarial supervision 46 pages A in each case one half code from Linux (to a large extent printed out Posts directly from the Linux Kernel mailing list) and the other half of listings of SCO were submitted. Whether it actually concerns thereby SysV sources, is like that not to be reconstructed, since they tore from the connection. Interesting is also, which all dates were removed from both, even from the comments. The coming AR are actually in parts identically, even some jokes are alike on both pages. Remarkable is however, which is nevertheless quite different to to most corresponding places the source code which is before coming arene. The fundamental structure of the complained of functions is similarly, the concrete implementation however nevertheless quite differently. Variable ones and function names are different, Schlefien are structured differently, conditions run over chain queries or bit pattern. All in all only one can be surely said: The functions supplied by the respective code paragraph are often alike, which was to be expected in addition, from the front in here. In the concrete implementation there are not however so many differences that a proof of the same origin will become difficult, although reliably not possibly. Crack point is however a function of the scheduler, which is on a length of scarcely 60 lines actually identical up to small differences. Here there is also a whole number of corresponding comments. Comparable similarity indicates only one routine of the store management, with which there are comments however only in the Linux version at all. Whether alone from these two agreements however a judicious proof can be created, only one lawyer with Sichrheit can estimate. The vague similarities in other sections hold I for, since for both the same standards to reason were finally situated, certain an agreement thus to expect insufficiently are. Which concerns however the same comments for however different source areas, I can make myself on it no Reim. That would have to be again examined in any case more exactly, in particular also with available dates. Because with it a violation of the clock jack right could only be proven at all. Which concerns the discussion around from SCO/Caldera themselves under the GPL sold section of Linux, then must be said, which had to decide so far still no court on the right security of the GPL. If this should be determined however, what is not safe, then SCO can consult only the sections from Linux to the comparison, which did not publish it and in their development or advancement it was not involved. Also this regard I as a difficulty in the coming procedure. Since however the original, ungepatchten Linux sources, but only modifications, which inserted most diverse Distributoren, were not attacked in any case is to be still clarified whether these evtl. Right ones at the deplored paragraph have, either directly or indirectly e.g. by firm unions, transfers, "all inclusive" Deals The chances on a procedure actually which can be opened are however not particularly high, since one agreed so far in most comparable cases out of court. This is however only my personally estimate, obligatory is in any case only the decision both pages of the representing lawyers or then possibly the responsible court."

If anyone can provide a better translation, please do.

PS June 15, 2003 This story is now on Slashdot, where some are opining that this may not be true, that they are unable to find any such individual on Google. A better translation was offered and it was summarized by one poster like this:

Summary (Score:5, Insightful)
by utahjazz (177190) on Sunday June 15, @07:37PM ( #6207400 )

-Code was 46 pairs of printouts, no dates associated. -2 sections of code looked very similar -The rest was mostly copied comments, including jokes that were copied. -Observer found it curious that the source code near the copied comments was completely different."

P.P.S. I doublechecked. I was worried that being unable to find the good doctor on Google might mean there was no such person, that this was a hoax. If so, I would want to find out and post what I found, because my goal on this blog is accuracy. I too was unable to find him on Google. Google isn't the only search engine on the planet, however, and if you wish to find this guy on a search engine, try Vivisimo. It will bring you not only to the original link but also to a link to Network News, a German Linux site here. Golem's forum is here. Once you are there, do a search (suche) and it takes you here. The search results are here. Someone here asked him to clarify and here is how Sherlock translates, with my editorial comments in brackets:

Q: How could you attain insight? [I assume he means how did you get to see the code?]

"Since our enterprise develops also products on Linux base, inspection for two coworkers was agreed upon. The regulation concerning the limitations, Microsoft representatives are exposed to which, was acknowledged in the meantime by several places, even if honestly said the insight into the Sinnhaftigkeit of this decision is missing to me. Which concerns the missing discretion assertion, then I assume an error on the part of the representing kanzlei, because also several coworkers the Siemens Nixdorf received insight without restrictions." [He seems to be saying again that he didn't have to sign the restrictive NDA through an oversight and he says that several other coworkers at Siemens Nixdorf also gained access to the code. Depending on the accuracy of this translation, it could indicate that he works for Siemens Nixdorf.]

Q: "it does not know whether I > so without closer inspection; to believe can. Would be however marvelous, if is correct. Is for me as one those, which one provisional order against SCO obtain could already quite interesting. Take up nevertheless simply times contact, Nehmen Sie doch einfach mal Kontakt auf," [I haven't a clue here, except he is either saying he is part of the legal action against SCO or he would like the Dr. to help, but he can't believe what the Dr. wrote earlier, much as he would like to, without more evidence.]

A: "I am not a lawyer, take you my predicates thus please not as starting point for legal steps. Also I would like to contain for the time being once of further expressions, since at least in-plant in the meantime appropriate statements on mean colleagues and me were issued, and I no difficulties to cause would like. In all other respects my colleague of other opinion than is I and keeps the reasons for not, stated on the part of SCO, durable. But that can clarify probably only one court finally." [I am again not sure, so maybe someone who speaks German can do a better translation. He seems to be saying that he doesn't want to be involved in any court proceeding and wants to say no more for now. The rest is unclear.]

Someone has posted questions for him to answer in English, and one question is the right one:

"Also, could you clarify how Microsoft representatives were involved in your viewing of the disputed SCO/Linux code?"

He has not yet answered that question. If you go here, you can scroll down the page, looking at the Autor (author) column and you'll find the name three times. I told you, research is what paralegals do. If you recall, it was a SCO paralegal who found the copyright amendment to the Novell-SCO deal, not Boies or the inhouse attorney. Paralegals find things other people can't. I'll keep my eye on this doctor. If anyone reading the blog wants to follow up, I'd think a simple phone call to the company he mentions would be fruitful, particularly if you speak German. Either you'll find the good doctor there, or you'll find out if anyone else there saw the code, as he says, or you'll find out he isn't who and what he is saying on this forum. Let's see, if it's midnight here, what time is it in Germany? Where'd I put my Zaurus?

comment [] 4:01:10 AM    

New Aberdeen Report Says Code Could Be BSD Unix

Bill Claybrook, of Aberdeen Group, has written a new report. It's called "SCO-IBM Lawsuit: Time for Some Changes?" and you can get it here. It's free, but you must register.

According to a news report on NewsFactor, he says he just can't say for sure if the code he saw proves infringement or not. Unlike Ms. Didio, who if I remember correctly studied French in college, Mr. Claybrook used to be a UNIX kernel programmer, also a university professor. While Ms. Didio was endlessly impressed, she says, by the code, Mr. Claybrook said just "eyeballing the code" didn't provide enough evidence to be conclusive, because they didn't show it to him on a computer.

"I wasn't able to look at the files on the computer, so, all I can say is, 'I saw this stuff, and I don't know whether it's true or not.'

"'All of it could have been copied from BSD Unix,' he said, referring to a version of Unix different from SCO's System V version. 'I have no way of knowing all that -- not without seeing it on the computer,' he said. 'And what's weird about it is, it wasn't like they copied the whole function,' Claybrook said, referring to the programmers who allegedly copied code. 'If you pull pieces of code from one program to another, it means you have to integrate them into your code, and then test with everything else,' he said. 'It just doesn't make sense -- why not take the whole function?'"

Bottom line? "In Aberdeen's view, if SCO wins its lawsuit against IBM (or settles out of court), then this is not a knockout punch for Linux," Claybrook wrote.

comment [] 12:29:58 AM    

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