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Tuesday, August 5, 2003
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An Open Letter to Darl McBride
What you said in your statement today, as I heard it, is this: no one has the right to come up with a business plan that might put yours out of business.
I feel your frustration, but that's like saying if I come up with a better mousetrap, I can't sell it, if it will put prior mousetrap manufacturers out of business. Don't you believe in free markets? Don't people get to choose a better mousetrap, if someone invents one? The GPL is a better mousetrap for software than what you are offering, which is why your software business isn't thriving.
Now, before you have a stroke thinking you are getting a letter from a nasty IP pirate, I want you to know that I never, ever knowingly violate anyone's legal rights. I don't download music unless I have paid for it. No kidding. If you really have infringing code that you are willing to show, I'll definitely not use it. If I have to jump down to 2.2 or up to 2.6, or wait for a clean version of the kernel, or switch to the HURD or BSD, or stop using computers entirely, whatever it takes, I'm happy to do so, if necessary. I really mean it.
I know for sure no one in the GNU/Linux community wants your code. You yourself in your statement acknowledged that Red Hat wants to see the infringing code so it can take it out. The only party refusing to let that happen is you. Do you want it to stay in, if it exists, just so you can make money from licenses? Um...is that legal? I'm not a lawyer, so maybe I've misunderstood, and you can explain it to me.
As I understand it, a copyright must be public, so if you're really finding verbatim code, there really is no reason not to show it. I believe, in fact, the burden is on you, not us, to do so. A trade secret is something else, but there are no secrets about copyrighted material, and besides, according to you, your trade secrets have been outed already by IBM, so no contract that you could possibly have could require secrecy for copyrighted code, unless I have missed something huge. Perhaps you can explain that part of your message more clearly than you did today, unless clarification isn't your intent.
You are the only entity here who can know what infringes your proprietary code, because proprietary means we can't look at it, so you have to identify it yourself. Your unwillingness to mitigate any problem you may have leads us to believe you may not have a legitimate problem or that you may have an illegitimate goal, like maybe destroying GNU/Linux. Say, is that legal? To try to destroy someone else's business? You can ask David about that.
Really, no one wants your code. That's the problem with your business model.
But when you say that the GPL, and releasing code under the GPL, is the same as stealing IP in the internet era, someone needs to explain some things to you.
First, the author gets to choose what licensing terms he or she wishes to release code under, if any. That's his IP right, as you would think of it. The GPL doesn't result in communal property. Each author retains his or her own copyright in the code or can turn it over to another entity, such as the FSF, depending on the author's choice. That, by definition, means it isn't communal property. Somebody owns it and has copyright rights in it. Just like you say you do in UNIX code. It's their copyrighted property, which they require you to respect, just as you would like others to respect your rights.
On top of the copyright, GPL coders choose to give users and other programmers more rights than copyright law itself allows. That's also their legal right. It's no different than Microsoft slapping a EULA on its copyrighted work, except it is different in that their EULA takes away rights, where the GPL gives rights. If the GPL isn't "legal", then neither is Microsoft's EULA. It's the same concept.
Now, I'm a writer, so that means this letter is copyrighted. So is everything else I write. No one can take it and print it anywhere without my permission under copyright law, except for fair use, which I believe in and I'm sure you do too, since it's part of the law.
I choose, however, to use the Creative Commons license for my site, because I want people to use whatever I put up here in accord with broader rights than copyright allows. Reporters "steal" my research results all the time and use it as if they did it themselves, and that is fine with me. I want them to do that. They can't steal anything when I freely give it to them to do whatever they want. I want the widest possible distribution of my work so people will see through your, well, excuse me, but what I would call your FUD.
Are you saying that I can't distribute that way, because other web sites charge for access to their content? If not, what is the difference? The GPL is a choice some programmers make, in some cases because they believe in free software, free as in speech, and others because it leads to tremendous benefits in the end result, the software. It's a legal choice, whatever the motivation. Can't you see the difference between that legal choice and piracy, as you call it?
GPL'd code is meant to be used and improved, unless you use it only privately, in which case you don't have to share anything, even any improvements you feel like making to the code. It's yours and yours alone unless you distribute. Companies that aren't software companies can use GPL code as much as they like safely and they will never have to share any private code they add to it, so long as they never distribute the code. That's my understanding of how the GPL works.
And as for Red Hat's SEC risk disclosures, I have a tip for you. No one, including you, has access to unpublished patent applications and copyright registrations. It's a problem common to all, that one minute before you do your search, someone will file an application that will eventually come to light, once the data is updated, and make your later application void. Take a look on the Copyright Office or the USPTO's web site. They explain that to you.
Nice try.
As to the GPL, I think somebody needs to explain it to you a bit better. You have set it up, you think, so end users can't be in compliance with both your license and the GPL at the same time, so no further distribution can occur, as you said. But there is another option. We can remove your code, if you ever show it, or start from scratch, or switch to the HURD kernel, or BSD, or whatever it takes to diligently avoid your code. Then we'll just keep on coding without you and distributing away. That's if you hadn't already released this code already under the GPL, which I think you did, in which case you can't now take it back and write another license for the same code.
We can also decide to try to defeat your claims in a court of law, and that seems to be the legal choice so far everyone is choosing to follow. How is using the courts to establish rights equivalent to piracy? That's what courts are for: to determine if folks like you have any claimed rights or not. Until that happens, you'll have to admit it's a stretch to compare yourself to the glorious RIAA. At least they have demonstrated some copyrights under the current law. So far, you have not. Inviting flies into your spiderweb to look at code you have hand picked and, from analyst reports, edited, just doesn't qualify as proof of rights. It isn't even showing the code.
I hope you figure the GPL part out real soon, so you don't sink in the quicksand I believe you are standing on. Actually, that's hypocritical. I hope you do sink, in a business sense, grasping your unwanted code close to your proprietary heart.
8:15:28 PM 
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Part One of Transcript of Today's Teleconference
Here's the first part of Darl McBride's statement that he read first. I'll put the rest up as I get it done. I'll be providing a finished version eventually, but you'll get the idea and at least you won't have to wait to get the main thrust of the day. The rest is just like this part, menacing and lacking in comprehension of the GPL.
Here's the McBride statement:
"Thanks to all of you for joining us today.Yesterday, Red Hat filed a legal action against the SCO Group in Delaware federal court and announced the formation of the Open Source Development Fund. The purpose of this call today is to comment on those actions and discuss SCO's new licensing plan going forward.
"Red Hat's lawsuit confirms what we've been saying all along: Linux developers are either unwilling or unable to screen code in the Linux kernel to remove infringing code before customers buy and use it.
"Let me be clear. Red Hat is selling Linux that contains verbatim and obfuscated code from UNIX System V. Red Hat is also selling Linux that contains derivative works from UNIX that have been contributed to Linux in violation of UNIX licensing agreements. Some of these companies, like IBM and Sequent, have now had their license agreements terminated for acting in violation of the terms and agreements.
"We've had a chance to preliminarily review the lawsuit and Red Hat's press statement from yesterday, and there's several responses to [inaudible].
"First, RH claims that we have not shown examples of infringing code in Linux. This statement is simply not true. We have shown examples of infringing code in Linux to many distinct people, including some Linux advocates. We set up a viewing center in Lindon, Utah. We have gone to companies around the world to show infringing code.
"In fact, this same offer was made to RH, but they chose instead to sue us. RH is apparently trying to pretend that no problem exists.
"The code that the court will review in this case contains verbatim code from UNIX and misappropriated derivative works from UNIX. That has to be clear to the people that have reviewed the example code that we have shown. [inaudible]
"Second point: RH claims SCO is at fault for its loss of recent Linux business. We believe that SCO is not at fault for RH's recent loss of business. Rather, we suggest that RH has adopted a faulty business model. In its [inaudible] disclosure filed with the SEC on July 7th, 2003, just a few weeks ago, RH included very revealing risk factor disclosures that speak to this business model. The risk disclosure states that RH relies on software developed by independent parties over whom it exercises no control. The disclosure statement continues to state that RH lacks access to unpublished software patent applications and copyright registrations. These are RH's words about its own business. RH's disclosure also warns that if infringing code is in Linux, it may need to stop product shipments.
"In fact, this warning is consistent with the requirements of Section 7 of the General Public License, under which Linux is shipped to end users. The GPL states in Section 7 as follows:
"'If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.'
"So, this is the main problem of RH's business model. It distributes under the GPL. It has no control to prevent infringing code from going in to Linux. But if infringing code is found, RH is required under the GPL to stop shipments of Linux. That business model seems unsustainable in the long run.
"We believe it is the real cause of RH's business problems, not SCO. These issues would have surfaced eventually, with or without SCO."
"Third point: RH has pledged one million dollars for a Linux Development Fund. This pledge misses the mark. SCO has never considered suing Linux developers as individuals, only companies that employ them, like IBM, who are taking improper advantage of their UNIX licenses with SCO.
"Furthermore, RH's pledge will not do anything for end users, since there is still no indemnification for Linux end users. If RH or other Linux [inaudiable, maybe players] decides at some point in the future to [inaudible, maybe redraw] the defense fund to protect those who need protecting, we'd suggest they need to increase the size of the fund dramatically. With over 2 1/2 million servers running infringing Linux 2.4, the price of indemnification is measured in the billions of dollars, an exposure which monumentally dwarfs the current pledge of one million dollars."
Fourth point: Red Hat thinks SCO should publicly show them every line of infringing code. Why is this? So RH can acknowledge SCO's legitimate claims and acknowledge the key role that UNIX intellectual property is playing in the growth of Linux? Not likely.
"Red Hat thinks we should show them every line of infringing code so they can make changes and go forward, in complete ... with complete disregard for our business rights. Some [inaudible] developers are so comfortable with misappropriating UNIX code and derivative works that they seem to feel an entitlement to keep doing it. [inaudible, something about SCO spending a lot of money to develop and purchase their valuable IP] That makes no sense.
"At issue here is more than just SCO and Red Hat. What is at issue is whether intellectual property rights will have any value in the age of the internet, where intellectual property rights can be simply taken without regard to rightful ownership. Some people think they have the right to do that. Linux companies seem to encourage that, and even make business models around selling an unwarranted software code developed under a 'Don't Ask, Don't Tell' policy.
"Our society is engaged in an important debate to decide whether IP will remain proprietary or whether it will all become communal property according to Richard Stallman's vision for all software distributed under the General Public License, such as Linux.
"There are so many current intellectual property [inaudible, maybe violations or infractions], responsible corporations cannot disregard this as someone else's problem. SCO, one small company, intends to defend its intellectual property rights vigorously against Red Hat and all others.
"This is the only clear path for long-term profitability growth for any company in this internet era."
This was followed by his statement announcing the license plan. About 9 questions and answers followed, which is the part I haven't got transcribed yet. At the end, he made the statement I put up earlier and which I repeat here, so as to complete (eventually, gasp) the whole transcript:
"What they [Red Hat] didn't say is becoming by now very loud and very clear, and that is, the legal liability for Linux truly rests with the end user.
"As we move down the path of resolving our issues, we recognize that we're in a broader world of intellectual property issues right now. If you look at what's happened in the music business over the last few months, the music fights on for a number of years, and there's been billions of dollars the artists and the companies there have lost, and when they finally took the fight down to where the infringements are going on, the copyright infringement going on at the end users end of the music business, one press report I read said there is a 30% slowdown of downloading of illegal music on the internet after these customer lawsuits started.
"If we have to go down that path, then, again, we've been pushed there, we will go down there, that's why Boies' team is engaged, and David is ready to go, if that's what we have to do."
6:11:44 PM
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Meanwhile, SuSE Linux on IBM Hardware OK'd for Mission Critical Computers
The LA Times is reporting that GNU/Linux software is now certified, by the Common Criteria Group, for use on "mission critical" computers, including those used by US spy agencies and the military.
"It opens up new horizons and new venues that we'd been precluded from. Everyone has had this view of Linux as interesting but done by hackers on a part-time basis, a bathtub of a code," an IBM spokesman is quoted as saying. SCO didn't get the memo, I guess, speaking of new horizons.
I'm reporting this from a NewScan feed. Registration required at LA Times.
4:19:40 PM
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Forget Red Hat, SCO Now Wants to Sue You
SCO's response to Red Hat's lawsuit is that now they are being "pushed" to sue the end users. They'd sure hate to have to do it, but IBM and Red Hat are making them. Seems SCO's rights are being "squashed". Here's McBride's wording:
"What they [Red Hat] didn't say is becoming by now very loud and very clear, and that is, the legal liability for Linux truly rests with the end user.
"As we move down the path of resolving our issues, we recognize that we're in a broader world of intellectual property issues right now. If you look at what's happened in the music business over the last few months, the music fights on for a number of years, and there's been billions of dollars the artists and the companies there have lost, and when they finally took the fight down to where the infringements are going on, the copyright infringement going on at the end users end of the music business, one press report I read said there is a 30% slowdown of downloading of illegal music on the internet after these customer lawsuits started.
"If we have to go down that path, then, again, we've been pushed there, we will go down there, that's why Boies' team is engaged, and David is ready to go, if that's what we have to do."
Of course, he'd so rather y'all didn't push him to do this by getting a license instead. I'll have more as I type up my notes. Remember, he's talking 2.4 and 2.5 kernels. They have a FAQ page now. And an description page, which looks like it was written very, very fast, with the kinds of grammer and punctuation mistakes you normally only see in email. In it, they say they are only going after commercial users, but what I heard at the teleconference indicates a shift, so this is in the shifting sands department. Talk to your own lawyer for advice, if you think you need some.
3:22:08 PM
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SCO Wants Us to Buy Their Binary-Only License for $699
Um. No. Speaking just for myself, I'd give up computers altogether before I'd hand over one slim dime to SCO. I think I'd prefer to join the DoD and spend $640 dollars for a toilet seat first. Next, I was planning on buying the Brooklyn Bridge. Hey, we all have our priorities.
Here are their thoughts and terms:
"The run-time license permits the use of SCO's intellectual property, in binary form only, as contained in Linux distributions. By purchasing a SCO Intellectual Property License, customers avoid infringement of SCO's intellectual property rights in Linux 2.4 and Linux 2.5 kernels. Because the SCO license authorizes run-time use only, customers also comply with the General Public License, under which Linux is distributed. . . ."
"SCO will be offering an introductory license price of $699 for a single CPU system through October 15th, 2003. Pricing for multiple CPU systems, single CPU add-ons, desktop systems and embedded systems will also be available."
Nope. Guess again. Back to GPL Summer School for you. Take your time. We'll wait.
This is, no doubt, what the teleconference will be about. Until they open up the floor for questions. Then it'll be about Red Hat, I'm thinking.
That $699 is a special introductory offer, by the way, so you probably need to snap them up quick. Unless you think you might do better with their Going Out of Business sale.
1:51:27 PM
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SCO Teleconference at 2 PM Today
Yup. More. At 2 PM EDT, they say we can call in to hear them tell us how saddened they are to find themselves sued. Nah. They want to tell you about their licensing problem, oh, I mean program. Here's the scoop:
Number : Toll Free within North America: 1-800-238-9007
International: 719-457-2622
Password to enter call: 274040
When: Tuesday, Aug. 5, 2003
2:00 p.m. EDT, 11:00 a.m. PDT
Who: Press and industry analysts interested in UNIX and Linux
intellectual property issues
Replay: An audio replay will be available for interested media and analysts. To gain a copy, e-mail the SCO PR team at scopr@sco.com or the Schwartz Communications team at sco@schwartz-pr.com.
It seems this time you must be screened if you want an audio replay later. No more Mr. Nice Guy.
12:18:39 PM
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Helping Red Hat
One of the things that might help Red Hat would be a collection of articles indicating that SCO was going to sue Red Hat at some point in the not too distant future. So, here are some articles that I think might be helpful. Perhaps you can find more.
Here is one from Datamonitor, July 24, 2003:
"SCO is aiming its licensing scheme at end-users rather than Linux distributors. 'Our first and primary concern comes from commercial users who are benefiting from this,' said CEO Darl McBride. 'This is very targeted towards the people that are using Linux, which is end users.'
"What SCO appears to have forgotten with this statement is that some of the biggest Linux users are the Linux vendors and supporters themselves, however."
Here is another from Open for Business, dated March 7, 2003:
"Rumors escaping the Lindon, Utah-based company as early as mid-January had suggested the company may be gearing up to sue one or more of its competing Linux distributors, such as Red Hat , in the near future. The speculation intensified when SCOsource , the intellectual property-licensing wing of the company, was announced during LinuxWorld in late January. In part, that announcement acknowledge the retaining of star attorney David Boies by SCOsource for "research and protection of SCO's patents," providing many observers of an ominous feeling about what SCO was up to."
And here's another, from Linux World, dated May 14, 2003:
"Question : Are you planning any legal action against SuSE or Red Hat?
"Sontag : We have no action planned at this time. Our focus is on the IBM lawsuit. This does not mean, however, that we will not initiate other actions to protect our intellectual property at a future point. . . .
"Question : What about SuSE and Red Hat customers and other Linux users? Could they face litigation or be impacted in any way?
"Sontag : Certainly, as the evidence mounts, there could be concerns and issues for end customers. When you're talking about copyrighted materials or trade secrets being inappropriately obtained and released, even the recipients of that information have to have concerns."
And finally, here's one from internetnews.com, dated January 23, 2003:
"Anybody that does not have intellectual property issues related to SCO can sleep well at night, but for anyone violating our IP we are going to be more aggressive enforcing our rights than we have in the past," Chris Sontag, SCO senior vice president for operating systems, told internetnews.com. . . . Published reports elsewhere have hyped the matter, claiming that companies that might be affected by any potential legal action could include various other Linux companies, Apple Computer, Microsoft, BSD versions of Unix and others using the various operating systems."
If you see any more like that, feel free to add to the collection.
3:43:25 AM
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Correction On Red Hat Injunctive Relief
I had time to read Red Hat's complaint more carefully, and there was an error in what I earlier wrote. The media, in two places that I saw, reported that Red Hat was asking for a preliminary injunction, and that's what I wrote about too, because I didn't at the time have the actual complaint, only media reports. I have corrected what I wrote earlier, but I'm highlighting it here so you won't think you were dreaming.
What I am reading in the actual complaint is that they are asking for a permanent injunction, stopping SCO from saying bad things about Linux, in effect, and several orders, under the Declaratory Judgment Act, declaring that SCO's trade secrets have not been stolen by Red Hat or its customers, and that any such trade secrets claimed to be misappropriated are unenforceable, that Red Hat and their customers aren't guilty of copyright infringement, and that any copyrights are unenforceable, and that the Linux kernel and operating system are public and therefore can't be a trade secret.
Here's the actual wording:
"WHEREFORE, Red Hat respectfully requests:
"A. A permanent injunction restraining SCO and its officers, directors, partners, agents, servants, employees and attorneys, and those persons in active concert or participation with SCO from representing by any means whatsoever, directly or indirectly, or doing any other acts or things calculated or likely to cause confusion, mistake or to deceive purchasers, business partners and/or investors into believing that Red Hat's LINUX products and/or the LINUX products used by Red Hat's customers and partners violates any of SCO's intellectual property or trade secret rights;
"B. Under Count I, a Declaratory Judgment pursuant to 28 U.S.C. Sections 2201 et seq. that Red Hat's and its customers' actions in providing, creating, maintaining, debugging, developing, copying, selling, transferring, installing, operating, or otherwise using any of Red Hat's LINUX products and services do not violate any SCO rights under Section 106 of the Copyright Act, 17 U.S.C. Sections 101 et seq., and a Declaratory Judgment that any SCO copyright claimed to be infringed by Red Hat or its customers in conjunction with any of Red Hat's products is unenforceable;
"C. Under Count II, a Declaratory Judgment pursuant to 28 U.S.C. Sections 2201 et seq. that Red Hat's and its customers' actions in providing, creating, maintaining, debugging, developing, copying, selling, transferring, installing, operating, or otherwise using any of Red Hat's LINUX products and services do not constitute a misappropriation of any SCO trade secret, a Declaratory Judgment that the LINUX kernel and operating system are public and therefore cannot constitute a trade secret; and a Declaratory Judgment that any SCO trade secret claimed to be misappropriated by Red Hat or its customers in conjunction with any of Red Hat's products is unenforceable; . . ."
It then goes on to ask for actual damages, in an amount to be determined at trial, trebled, plus attorneys' fees.
12:35:29 AM
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