Putting some meat on legal news' bones.

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Wednesday, July 2, 2003

Could This Be the Central Control Point Critics Have Been Whining For?

Peter Galli at eWEEK, who gets a lot of good stories first, is reporting that Linus' "right-hand man", Andrew Morton, will also work full-time for the Open Source Development Lab. He will concentrate on the 2.6 kernel. Linus' statement said in part, "Now the maintainers of both the development kernel and the stable kernel have the support of a vendor-neutral organization committed to advancing Linux." The story seems to be indicating, to me anyway, the answer to complaints about no centralized oversight of the kernel, depending on the details. Of course, GNU already has such structure with FSF, so this would complete the oversight. Here's what OSDL's spokesman said:

"We are clearly being recognized as the center of gravity for Linux and are in the midst of forming a customer end-user advisory council to look at the business proposition of Linux and what users need from a full value chain if you will to implement Linux enterprise wide."

They also say that they are putting their money where their mouth is, and for sure, if they intend on being the central point, they really are, because centralization usually means somebody to sue.

That, of course, is what businesses like.

comment [] 9:29:59 PM    


As you may already know, a group calling itself VSI, a software federation of proprietary software firms and other hangers-on located in Munich, Germany, has put out a study, claiming that there are legal issues with using open source in Germany, because of the GPL and the openness of the process leading to copyright concerns. Heise is reporting the story in German, with an English translation here.

I smelled more coordinated FUD, so I went to find out who are the members of VSI. Here is their list of their chief members and partners (they say they have more than 170 members in all, but these are the ones that get to put their logos up on the members page):

Sun Microsytems
Software Spectrum
Fujitsu Siemens
and a few attorneys.

Yup. No agenda there.

As usual, the Babelfish translation is just off enough to be a challenge, but there is no way to miss what this part means:

"Anyhow the result might come been appropriate for the VSI, in order to disconcert open SOURCE prospective customers, who at present pursue the procedure of SCO against IBM strained."

Now for your dose of Anti-FUD, here's what is happening in Germany. Infoworld reports on a study, released on Tuesday, that predicts a huge growth in the use of open source software in Germany:

"Germany is poised to see sales of open source software and services grow substantially over the next few years, particularly in the public sector. In its report 'The Market for Open Source Software in Germany,' Soreon Research projects that sales of open source software and services will rise from 131 million German marks (US$152 million) today to 307 million German marks by 2007. ... The study was based on interviews with 150 companies and organizations in the private and public sectors, excluding the agricultural market, using 10 PCs or more, said research director Steffen Binder."

Anybody see a connection between these two stories? Besides me, I mean.

comment [] 8:21:27 PM    


First, some anti-FUD. There is a very nice article in both The Age and the Sydney Morning Herald by Con Zymaris, CEO of Cybersource, and IT company in Australia on how the SCO v. IBM lawsuit affects Linux. He also has a paper comparing the GPL with EULAs available on the company web site.

After that refreshment, now we start to sink into the FUD mud. First, the Salt Lake Tribune (who else?) reports that SCO stock "is Utah's best-performing stock. Its shares are up a phenomenal 596 percent." I guess we can at least concur that SCO is a phenomenon.

Then there is a mostly fair and surprisingly firm article in Business Week, by Otis Port, on whether Linux will have the life choked out of it by this case, in which Port scolds SCO for not showing the code:

"By raising national security concerns, software maker SCO's suit against IBM hamstrings the open-source movement.

"The $1 billion lawsuit that SCO Group (SCOX ) Inc. filed against IBM in March is turning into something akin to water torture. Every few weeks, there's a new allegation or announcement from the tiny Lindon (Utah) software company, provoking fears that it will enforce its intellectual property rights against sellers of the Linux computer operating system.

"Enough already. True, SCO should be free to protect its software, in this case core pieces of the Unix operating system upon which Linux is based. But its relentless approach to this case could cause irreparable harm to Linux -- slowing or even halting its adoption by corporations."

Say, that was refreshing. The most important news in this article is that it says removing the code would be acceptable to McBride. It also says that in July SCO "will tell companies that use or distribute Linux, such as Red Hat, Inc., that they need to buy a license.

So... let me get this straight: before any court has determined if SCO's claim is valid, they are shaking down the neighborhood demanding everybody's lunch money? Based on what? An interesting and novel legal strategy. The Business Week commentary concludes by saying, enough of the water torture; show your code, so this claim can be resolved now.

Next, there is an article in CIO magazine, "The End of Idealism," by John Parkinson. In it he repeats many of the usual "Linux isn't ready for the enterprise" FUD stuff, but he adds a new one:

"Second, a lot of the intellectual property in Linux is actually owned by companies that never officially agreed to make it available under an open-source license. Most obvious here is The SCO Group, which is suing IBM (and threatening to sue everyone else who either distributes or uses Linux) over trade secret infringements. But there are others, including Microsoft, that could do the same if they chose."

Does he, by any chance, have some inside information from Microsoft that no one else knows about? Last I looked, you can't say defamatory things if they are provably not factual even when dressed up to look like "opinions."

That started me thinking about what the MS employee said, that the SCO suit was just the beginning. What do these people base their remarks on? Is this predictive and if so, based on what information? Is this, in fact, a strategic, planned campaign, with some of the little people letting bits and pieces leak?

I went digging for an article I remembered from quite a while back, on how MS does publicity. Happily, I found it. It's a 1998 Los Angeles Times article, "Microsoft Plans Stealth Media Blitz - Publicity: Campaign to conjure image of public support called just a proposal by firm". Part of the article details information on MS PR techniques:

"Stung by the public relations fallout from antitrust investigations of its business practices, Microsoft Corp. has secretly been planning a massive media campaign designed to influence state investigators by creating the appearance of a groundswell of public support for the company.

"....According to the documents, local PR agencies are scheduled to begin submitting opinion pieces to the media next week, followed in the coming months by waves of other materials, including glowing accounts from Microsoft partners, consumer surveys and studies designed to show the company's impact on each region's economy. Letters to the editor are to be solicited from regional business leaders. Opinion pieces are to be written by freelance writers and perhaps a 'national economist,' according to one document. The writers' fees would be 'billed to Microsoft as an out-of-pocket expense.'"

Of course there is nothing illegal about PR, although I have ethical issues with such a campaign, but the point is: doesn't it look a bit similar to what we are now seeing in the media covering SCO?

I couldn't write about FUD without mentioning my favorite, the lovely and tireless Ms. DiDio. Today she is quoted in an eCommerce Times story about United Linux:

"SCO's decision [to pull out of UL, according to Ms. DiDio] has not killed UnitedLinux as a project by any means, DiDio told the E-Commerce Times. In fact, she said, UnitedLinux is founded on a sound premise: Businesses do not want to wade through 30-plus variants of Linux. She added that interoperability and the ability to support third-party applications without a hitch are vital."

Interoperability? In Linux?! Has she ever used Linux? I surely doesn't sound like it. And if not, why is she asked to pontificate about Linux?

Unfortunately, her expert opinions are not yet at an end. In a Newsfactor article, "What If SCO Gets Its Way?", she is quoted again:

"'Whether SCO wins or not, the rules of the game are going to change,' said Yankee Group analyst Laura DiDio.

"The lawsuit, regardless of its outcome, points to the need to resolve open-source copyright issues, she told NewsFactor. 'There need to be strong guidelines, and there needs to be complete clarity about "who contributed what, what's free, and what does it cover?"

"Linux is growing up, DiDio noted, 'and we're getting to the point where people are asking, "Well, what is the cost of this?"'"

Who's the we in this sentence? There is another article extensively quoting DiDio, but I'm a little sick of putting her thoughts in my head, to be honest. Be my guest, if you so choose.

OK. Let's be fair. And objective too. So take a look around. A lot of people have been saying that Linux needs to grow up, including McBride, and many are saying that businesses are starting to ask if it is dangerous to use open source, because you might get sued. So, my assignment, which I chose to accept, was: Is this "expert" opinion true, or it is another planned PR blitz? Short of finding another insider memo, I can't know for sure, but here are some pieces of evidence as to the true state of affairs post-SCO.

First, on the question of whether you are safer using proprietary code, because you won't get sued, thanks to corporate oversight of code, I present the following references, with thanks to Andrew Grygus' Microsoft the Company foundational info page:

1. Just today, RealNetworks and Listen were sued by Friskit for patent infringement.
2. This March, MS won a patent infringment suit brought against them by Network Commerce last year. I don't know if it's being appealed, but the point is the suit was brought and had to be defended.
3. Intertrust Technologies brought a patent infringement lawsuit against MS in 2001.
4. Blue Mountain Arts won an injunction against MS in 1998 for patent infringement.
5. Of course, we all know that Caldera sued MS for copyright infringement, patent infringement, theft of trade secrets and fraud. It was settled out of court in 2000, but Caldera reportedly forced MS to buy a license for millions.
6. There is the well-known Lotus v. Borland copyright spreadsheet case that went all the way to the Supreme Court. Incidentally, attorney Gary Reback, who was involved in the MS anti-trust case, says he is coming out of retirement (he says he no longer gets hives walking into a law office) in order to represent Calabasas in a new copyright-software battle that he says goes over some of the same ground as the Borland case but focusing on the foreign market.
7. Microsoft was found guilty of "software piracy" in the Syn'x Relief case. Proprietary software doesn't protect you from lawsuits. It engenders them. I think you could say they are the root cause of them, in fact. The necessary predicate, if you will. Why is one very dubious open-source lawsuit causing analysts left and right to say that Linux may be dead in the water or that it must change? Surely an analyst in the software field knows that lawsuits are just the way America currently does business, in a IP white-water frenzy. Few analysts, if any, are suggesting that MS should be dropped because they have been sued over and over and even sometimes lost IP lawsuits, as it just did again in the Timeline case, which I covered on June 2.
8. And then Foundstone's President and CTO just denied a Fortune magazine article that said that company was guilty of software piracy: "While McClure says his company fell short of full software license compliance, software piracy was neither rampant nor condoned, he says. 'We are not perfect. We've made mistakes in the past. We didn't have 100% compliance...We didn't have everything perfect and buttoned-up, but we are striving for that the best that we can.'"
9. eBay was once sued and found guilty of patent infringement.
10. Then there is the Microstrategy v. Actuate lawsuit.
11. Honeywell won $30 million from JVC for patent infringement.
12. And last but not least, the judge in the current Sun-MS case just affirmed a copyright infringement injunction against MS, though it wasn't easy to learn about it from the media, which almost universally spun the story as a MS win.

All right. Who's kidding whom? That's 12 proprietary infringement lawsuits and nobody is writing articles on how proprietary methods of IP oversight need to "grow up." (They do. But nobody says so in the mainstream media.)

As for companies being scared off from using Linux by the SCO case, today Internet Week ran a story that Orbitz is more committed to Linux than ever. HP just announced it will resell and support SuSE Linux. Novell said it plans on moving forward with Linux. RedHat just had a profitable quarter. I just saw this headline: IBM Scores Six New Linux Wins in Europe. Trustix says it's easy to sell Linux now. Dell's got a new Linux-on-Itanium 2 server. Cray chose SuSE to power fastest US supercomputer, another recent headline proclaims.

Just anecdotal evidence, you say? Then how about this article, reporting on the results of a study. Analysts like studies, no? The study found "broad use of Linux":

"Among the survey's findings were that 59 percent of the managers who responded said they had Linux in their IT departments at work. Some 64 percent of respondents said they used Linux for Web servers, while 51 percent used it on application servers and 46 percent ran their database servers with it. Some 44 percent used it for file servers and 43 percent used it to develop custom applications.

"Some 65 percent of the managers cited stability as the top reason why they used Linux, 63 percent liked its total cost of ownership, 61 percent were swayed by its deployment cost, 58 percent said its performance and 50 percent said security....

"Dan Kusnetzky, vice president of system software research at industry research firm International Data Corp., said the survey findings are consistent with those of its Linux studies over the past four years."

Folks, I didn't even have to break a sweat collecting this material, although I can't say the same about putting it into HTML. Surely it is available to these software industry "pundits" also. So what is the problem? Why don't they know these simple facts? Or is lack of knowledge maybe not the core problem in this picture? Final word from the study:

"We see a trend of corporations considering Linux in more and more areas as a mainstream choice.

So, to the analysts: Analyze that.

comment [] 1:23:01 AM    

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