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Sunday, October 12, 2003

Why Microsoft's FUD May Be Doomed When I read the other day an article entitled "Why Open Source May Be Doomed", my first reaction was to just ignore it. It's hard to rationally answer an article so biased, factually inaccurate, and lacking in fundamental comprehension of the subject as this one, which begins like this: "I have to admit that I was never much of a believer in open source. Maybe my business school coursework rendered me blind to the glorious vision of a 'gift culture' in which people contribute their work to a decentralized development project like Linux for honor instead of money. Or possibly I'm just too thick to understand how cutting off a multi-billion dollar revenue stream from software sales, without putting anything else in its place, could be good for the software business. Whatever the problem, I never quite believed in the fairy tale world they promised in which we'd all get an operating system that was better than Windows in every way, for absolutely no money -- not even when IBM started retailing Linux PC's and the juggernaut of fabulous free operating systems seemed unstoppable. But I confess that in all my skeptical musings, I did not imagine that Linux might be brought down by something even more prosaic than a lack of funds: a lawsuit."  "Too thick" it is, then. You yourself said it. How do you answer something "so bad it's not even wrong", in Wolfgang Pauli's famous phrase? She ought, instead, I thought, call her fervent FUD/editorial pretending to be an article: "Why I Do So, So Hope, Hope, Hope Open Source is Doomed". I do, after all, have to consider the impact on my neurons of bombarding my brain daily by answering all the minute details of FUD, I decided. I'd save myself for the big stuff, which this wasn't. But now I see it's being republished here and there. In my experience, that often turns out to mean that there is some force behind it giving it a PR lift. Also, it smacks of the "Open Source is hippie, dippie, icky, commie, unAmerican" stream of FUD, and that is both untrue and defamatory, so it needs to be answered wherever it appears, particularly because McBride has expressed such views, and it may turn out to be an orchestrated campaign of some importance in the SCO story. Open source, although boasting an international community, springs from values as American as apple pie, not that they are uniquely US property. So, I started digging to find out who owns Tech Central Station, which published the article first, and here is what they tell us about themselves on their About Us page: "Tech Central Station is supported by sponsoring corporations that share our faith in technology and its ability to improve modern life. Smart application of technology - combined with pro free market, science-based public policy - has the ability to help us solve many of the world's problems, and so we are grateful to AT&T, ExxonMobil, General Motors Corporation, Intel, McDonalds, Microsoft, Nasdaq, National Semiconductor, PhRMA, and Qualcomm for their support. All of these corporations are industry leaders that have made great strides in using technology for our betterment, and we are proud to have them as sponsors. However, the opinions expressed on these pages are solely those of the writers and not necessarily of any corporation or other organization." Not *necessarily*, eh? No agenda there. Those rascals Microsoft show up again in the background, although "not necessarily". The MS FUD machine grinds on and on like a tank. So, next I decided to find out who Megan McArdle is that she wishes to be published by this corporate PR rag with content that might express Microsoft's views in exchange for its money, but "not necessarily". I gather from a Google search she writes under two names, the McArdle name and the name Jane Galt on janegalt.net, and that she is a recent graduate of the University of Chicago's Graduate School of Business. But let her tell you who she is and what she is about in her own writings here and here and here and here and here. Just as I sighed and sat down to begin to write, I read a comment entitled "So ignorant it is hard to read" by Dick Gingras, of Software Solutions, on Groklaw, answering some of her points. I asked him to do an expanded article in answer to her main point. If I spread answering the FUD around among us all, I reasoned, I won't end up a drooling idiot, hopefully, by the time the trials finally begin. He was kind enough to write it. So, here it is: Dick Gingras' answer to "Why Open Source May Be Doomed": The other day on Groklaw, an anonymous user posted a link to an article on Tech Central Station entitiled "Why Open Source May Be Doomed" by Megan McArdle. The article was anti-Linux/FOSS and filled with inaccuracies relative to the SCO/IBM case, so I wrote a response and sent it to the TCS editor; I also posted it on Groklaw. Unfortunately, under the influence of a flush of anger, I neglected to address the author's main premise that "Linux is doomed" and refute her premises. Herein, at PJ's urging, I continue with the rebuttal of those points. McArdle states as one of the threats to Linux: "[I]f you're an IT manager deciding whether or not to purchase a Linux machine, how can you be sure that those stolen lines are the only ones?", referring to the code allegedly copied from Unix. Indeed, the same question could be asked about buying Microsoft Windows, or any other piece of software. We can't know for certain that an overworked programmer hasn't misappropriated some code so he can meet a deadline, regardless of which company he works for. Furthermore, this situation is less likely to happen with Linux/FOSS because of its open nature - any closed source developer can compare code at will. She seems to think that IT managers are a timid bunch, fearful of making a move to Linux because there might be some risk of purloined code being discovered. But having spent 15 years of my career as the IT Director of a manufacturing company, I can state unequivocally that my peers in the many companies I dealt with were far from timid. Risk-taking is part of the job description, so there's no room for the meek. But risk is only one factor in the IT decision-making process, and it's effect is tempered by all the other variables that make up the cost/benefit equation. A healthy company assumes risks that are commensurate with the rewards; a company that takes no risks becomes moribund. (I'll ignore the fact that insurance companies built an industry out of providing coverage for business risks.) The cost/benefit aspects of FOSS are large enough that when weighed against the tiny potential of an adverse decision in the SCO case (one that's getting smaller by the day) or exposure to "stolen code", I expect that only the most risk-averse would avoid Linux specifically for those reasons. We've already seen some companies publicly stating that they'll continue with their Linux deployments despite SCO, but I'll wager that most just dismiss SCO with a shrug of indifference or, if they've been following the SCO case, maybe a sneer of derision. McArdle's premise that the FOSS "gift culture" is bad for business is seriously flawed. As has been pointed out by Stanford Law Professor Larry Lessig and others, the scientific community has used that same model for centuries, sharing for the good of society, while business has thrived on the fruits of their labors. That paradigm started the Industrial Revolution and, through the accelerating accumulation of knowledge, has carried us to the onset of the Space Age. There's no reason to believe that FOSS will affect businesses adversely, not even in the software business. Microsoft's hegemony may be threatened, but for many reasons that's a desired result, despite what McArdle may think. FOSS may spur Microsoft to compete on merit. Most other software companies are used to competing and will probably welcome doing so on an open field. (With Microsoft preoccupied, they may even get a breather from watching their backs.) Competition drives prices down and provides choices for consumers while keeping companies sharp and, hopefully, honest. Although FOSS may have an advantage in being gratis or low-cost, it's at a distinct disadvantage because there's virtually no infrastructure to market it. All things considered, the playing field is fairly level. Her "gift" argument has another flaw: the "free as in beer" aspect of Linux that she alludes to is clearly not the only significant reason companies decide to use Linux; it's the "free as in freedom" of the GPL. Sure, small companies, non-profits and home users may gravitate to Linux largely for reasons of cost, but the biggies that make the headlines in the IT trade journals do so not just to save money but because freedom to change the software at will allows them to gain control of their own destinies. Early on in my position as IT Director, I made the decision to purchase the source code for the manufacturing software that we used. Despite the initial cost, this was the best decision I ever made because we could customize the software to fit our business instead of fitting our business to the software. That's the real power of freedom. Finally, her premise that Linux will die echoes the oft repeated mantra heard for the last 15 years - Unix is dead! I wish I had saved all the magazine covers that had that prediction. Unix is still going strong despite the Unix International/OSF war, the "Unix is snake oil" pronouncement of DEC's Ken Olsen and all the worst intentions of Microsoft and a host of others. Why? Because it has a simple internal design and uses a toolbox programming model, making it truly a joy for programmers to work with. Most important of all, it does the job well. Linux is similar and provides a familiar environment to users and programmers acquainted with Unix. Together with the myriad programs and utilities from the GNU project, X-Windows, KDE/Gnome, OpenOffice.org, Evolution, Apache and many more, we have a complete environment for almost any computing situation. Most important, it runs on most existing computer architectures. This is not lost on the likes of IBM, HP, SGI, Sony, Ericsson, Fujitsu, Hitachi, Motorola, Tivo and a raft of others who used to spend a lot of money writing or porting their own Operating System software. Embracing GNU/Linux saves a significant amount of time, effort and money that would otherwise have been consumed in reinventing the wheel with each new product release. By sharing in Linux development costs, either monetarily or through their own development efforts, they can all have what they need with a much smaller expenditure of resources. Once Linux reaches the point of scalability as exists in AIX, HP-UX, etc. (fairly soon), those operating systems can be retired to maintenance mode. The companies that promote and use Linux are acting in self-interest, and for logical reasons; due to the GPL, they can't appropriate the code, but in a more than fair exchange, each company gets to use it as it needs. So unless they want to go back to writing all that code individually, they will keep Linux alive. Even if I'm wrong about the motives of those companies, the developers of GNU/Linux will keep on, because they program for the intellectual joy of it. That's what started it all in the first place and it will continue as long as there are programmers who love their chosen profession. That others find their efforts useful is an added bonus. "He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me." - Thomas Jefferson, August 13, 1813 This work is licensed under the Creative Commons License. © Copyright 2003 Dick Gingras comment [] 5:21:28 AM     Why SCO Started All This. No. Really. Part Two P: Do you actually have any quotation that shows that there's a "don't ask, don't tell" policy? The only quotation we've seen is with respect to patents, which is the same thing any patent attorney says. With respect to copyright, I believe that what you're saying here is a gross misrepresentation, and that the Linux process is very much better than your wholesale copying of Linux into your source tree. Darl(17:27): I think when we look at this, you'll find... You've seen a lot of people out there in industry today that are understanding that there are issues and problems with the very process by which Linux comes together. P: As well as Unix, right? Darl(17:40): And so, what needs to happen, I believe, in this process is that some of these things are put together more tightly. P: Is BSD free of any copyright violations? Darl(17:50): I can't answer right now. I haven't done the same kind ... P: When you say you're not after the end users, are you interested in suing companies that sell Unix operating systems, Unix-like operating systems, not companies that use them or buy them? Darl(18:00): We're just fundamentally not interested in tracking down end users like yourself. P: Can I have that in writing? C: I've got it on tape. P: Here's my question. It seems from all the things I've read, and all the research I've done that SCO is more interested in trying to get money back for the damages than for actually cleaning up the Linux code and making sure that everything's put in its place. Is that true, or are you . . .? Darl(18:28): As we get into July, we want to try and try and figure out methods how we can move forward. It's not ... P: It seems to me that ... Darl: There's no doubt we've had significant damages. That's not the only goal in this process. P: It seems you could say lines this or this and this and this and this and this violate, send that out, it doesn't matter any of your problems, and just give people a chance to fix it. But it seems you're more interested in getting $3 billion, than in actually making Linux free of Unix. Darl(18:54): No, I wouldn't say that. P: After the dust settles, what becomes of SCO? Darl: Well, I think SCO ... P: Because, right now, I think lots of people feel, you know, [car ignition starting] Linux is what everyone uses these days, and SCO is doing this because Unix isn't selling. So after this lawsuit, I personally don't think a lot of people are going to be interested in buying SCO Unix, except people who already have a strong basis. . . Darl(19:22): And right now we think... We already know what people are buying from us, and seven of the largest retailers in the world use SCO Unix. McDonald's uses SCO Unix. Biotech uses SCO Unix. P: But a lot of people are moving to Linux. So, they're looking for reasons to replace... Darl(19:37): And so the point is there used to be hundreds of millions of dollars in revenue here. It's obviously come down. In terms of how we go forward . . . P: ... competition...[unclear] Darl(19:47): So we need to step forward and say here's how we're moving forward with our version of Unix. Here's how we work with Linux. Here's how this thing moves forward. P: How are you going to work with Linux? Darl(19:57): Well, stay tuned in July. That's really what we plan to come out with. Darl(20:00): Hey, I gotta run. Guys, I appreciate ya. P: Thanks so much. P: Thanks for talking to us. P: Thank you. P: And thanks for explaining to us. Darl: Yeah, I mean I understand. It's a big issue. It's a big issue for all of us. P: This is one of the biggest... P: But you said that the copyright issues that you're violating, it's not an issue for you. . . Darl: And it is one of the biggest problems in the industry, and that's why we all need to get it fixed together, and move forward. P: Is that a commitment to fix your copyright violations? [laughter] P: That's a good question. Darl(20:28): We feel very comfortable with where we are with our IP on this so ... [unclear] P: [unclear] rampant violation of the GPL? P: Will any third parties have a chance to go through the SCO source code and see if they've done violations of the GPL? Darl(20:41): Yeah, well, again, our source code is protected material, so... P: Like a third party that has... Darl(20:46): Absolutely, [unclear] really ought to do that. P: but the fact that they've shipped Linux for years, and now are not willing to abide by its license, which means that the years they've supplied it they've been in violation. P: ...applies to Linux P: They shipped Linux . . . [crosstalk] Darl: We obviously have problems. Now one issue here is a distribution is not the same as a donation, right? Somebody donated code that is protected by us through other agreements in there. When it goes in, it doesn't say "this was SCO protected code." We only found out about this a couple months ago. That's when we said "we've gotta stop this until we get this figured out." P: How did you find out? Darl(21:27): Well, what happened is after we filed the IBM lawsuit, we were in the process of ... This was... Clearly we found code that related to IBM. That is what led us to go into the lawsuit, and in the process of getting ready for that litigation, there was a deep dive that was going on, to comparing code bases in Linux and Unix, and it coughed up during that [unclear] process. P: Isn't it possible that someone was just inspired by work they'd done for other companies? Isn't that reasonable? Darl(21:50): It's reasonable, except when the comment codes are the same, the humor lines in the comment code are the same, and the typos in the comment code are the same, then you start getting beyond... Ya know, it was kind of like, I learned this one day at school ... It becomes more of the... Those, to me, are really the DNA of the code here. P: But the question is, can you say which one comes first? For example, we know that we can see the change log on ... Darl: Yeah, it's real clear. P: Can we tell that SCO isn't the one that ... Darl: Yeah. We've gone through this. It's really clear. Darl: We want to get to a good solution. P: ...IBM... Darl: And we want to get this resolved, and ya know, we're working to that end, and I appreciate you, guys. You're on that end too. P: The thing that we ask is that you just make it clear that you're attacking IBM, not us. Darl(22:38): I appreciate what you're saying. OK. P:Thanks. P: Do you mind if we publish this? A transcript of this? Darl: You know, I said everything that I said, so you know, I didn't put you under NDA, so obviously you guys will do whatever you're gonna do. P: We'll try not to take it out of context. Darl: I appeciate that. P: Thanks. comment [] 5:20:18 AM     Why SCO Started All This. No. Really. Back in June, there was a protest by Linux users at SCO headquarters, which received some coverage in the press, including here on Groklaw. I now have a transcript of the conversation between SCO CEO Darl McBride and the protesters. I've also listened to the tape to verify the accuracy of the transcript, and you can do the same if you can play .ogg files, here. There are a couple of places where the sound isn't clear, so I've indicated that in the transcript. McBride talks about a number of issues, such as SGI, whether SCO intended to sue end users or commercial only, how and when they discovered the alleged "infringement", Caldera's contributions to Linux, and whether Debian is a safe version of GNU/Linux to use because of its noncommercial nature. He also tells them that SCO isn't interested in suing individual users or even small commercial users. Its beef, he says, is with the "Unix vendor community", UNIX-licensing companies switching to Linux and donating code to Linux so they don't have to pay any more royalties to SCO for Unix code, "the vendors that are getting an economic incentive to reducing the amount of royalties that they pay by virtue of taking our property and putting it into Linux, then turn around and saying it's a free system." He mentions that they were talking about 64-way systems, not home users. He also says they found "hundreds of thousands of lines of code that are infringing against our contracts." Note the plural on contracts. He claims the increase in functionality in Linux is because of "vendors" that SCO has "confidentiality agreements" with. Again, note the plural. A lot has changed since June, but it's clear that when this began, SCO had in mind a very small pool of targets, UNIX vendors being a small group of companies. What stands out is that I think you'll see how polite the Linux group is, how friendly the conversation was even when strong points were being made by each side, McBride praising them several times and at the end thanking them for their input and calling them "awesome". How different this reality is from the ugly portrait he has tried to paint in the media of users of GNU/Linux software allegedly "attacking" SCO. And when you hear or read it, ask yourself, how accurate were news reports of this event? But judge for yourself and draw your own conclusions. Transcript of informal group chit-chat with Darl McBride June 20, 2003 Members of the Provo Linux Users Group (PLUG), along with other Linux and Unix group members and concerned individuals in the area held a protest against SCO on June 20, 2003. This protest began in front of SCO headquarters in the afternoon. The official PLUG protest web site, with pictures and video, can be seen at http://mirror.lug-nut.com/ After protesting in front of the SCO corporate offices (on a cul-de-sac), many in the group moved to a more visible location, a busy intersection nearby. A little while later, Darl McBride stopped by for an informal chit-chat with the demonstrators on his way home. Here is what was said during the 23-minute conversation. The Cast: Darl: SCO CEO Darl McBride P: Protester (the collective group, with various individuals asking questions) C: Cameraman Pleasant Grove Police Officer: Pleasant Grove Police Officer Darl: So, how's the day going? P: Oh, pretty well. We had more people than we expected. We talked to some of your engineers outside, and they're really nice people. Darl(0:11): So how did all that go? P: Oh, really well . . . Darl(0:16): So you guys are just convinced that we're Satanic? Is that it? P: No, no, no. P: Just greedy, that's all. P: We wouldn't use those words. We would use different ones. P: We don't say Satanic, but we don't respect what's happening. P: Yeah, I mean, we obviously don't know what's going on 100%. And, we feel like the whole world is being kinda kept out of the loop. But we, the number one reason that we're out here is because we feel that there's a lot of FUD going around about Linux right now. Businesses are trying to be scared off to using Linux. I mean, IBM might be at fault, and if they are, they should be punished for what they did. . . Darl: So your whole basic concern is just the whole FUD side of the issue. P: Right. Now people aren't going to use Linux because of this IBM lawsuit, when IBM is not the one that's hurt. We're the guys who actually program this stuff in our spare time. P: We're worried about claims being made without any proof being shown, and it's ... P: And we don't see the legal basis for an NDA to see the supposed code you're offering ... Darl(1:08): Well, you know that's a good one. A lot of people have been concerned about the NDA. You know, the basis for that is we have these software agreements that we have made with large vendors around the world and it basically says "We have to protect the software code," and in order to basically license this you have to sign up to say, this is confidentially protected and you won't share this with somebody else. So, if we turned around and opened this code up, like if I showed you the code, I mean, I've got it right here. . . P: Do we want to see that, or are we at liability? No, I'm dead serious. Are we at liability if we see that? I'm not kidding. Darl(1:50): I'm not going to show you. But, the point is we found hundreds of thousands of lines of code that are infringing against our contracts. Okay? Now we went through the process, and everybody said, wait, if this is, just show us ten lines of code. If it's really that bad, just show us ten lines of code. We don't want to wait two years. See, your point about FUD, if there's something there, we want to see it right now. P: Well, we can fix it ... Darl(2:15): Well, exactly. P: So, see, with IBM, your liability claim against IBM, if that's truly what you're seeking, it doesn't matter if we fix it and take it out, you can still show that IBM put it in there. Darl: Right, so let me just... P: So, what's the point of ... Darl(2:27): So the point is this. Our agreements say that it's protected. Now by us going out and this becomes unprotected. .. P: ...and rather than just saying where in the Linux kernel itself . . . Darl: Like if I show you this side of the page, it's okay. I mean, this is Linux. This is out and everybody can see it, okay. But if you look at the other side that I'm not going to show you right now, this actually is protected code that nobody is able to see without, you know, being under one of our protected agreements. It's not about showing the code to keep it protected. It's just that it's protected. P: Okay. P: So why not indicate the lines in the Linux kernel without showing us your code? Darl(3:01): Right. Because then by definition, we have exposed the code that is protected. Does that make sense? P: It already has been exposed. P: That's kind of redundant. Darl(3:10): Exactly. By us coming out and saying where it is and what it is, that's where it becomes a problem. P: A different question along the same lines. Caldera in the past has contributed a lot to Linux. Darl(3:21): Right. But we haven't contributed our Unix code. That's the differnce. P: But, according to... I read something about an engineer who used to work at Caldera that said the other day that said there was code that was, that Caldera did put ... Darl(3:32): There is code that we have agreed to put in there, and we've had (unclear), but the code that we're finding infringing is not the code that we've agreed to contribute. P: Why instead of following the model that AT&T set for this, that is showing what lines of code that is, at least giving an opportunity to remove the code, instead of suing for 3 billion dollars? There's a big difference. Because AT&T found similar problems with BSD, and you could see their motives. They really wanted that code out of there so that they could continue with their proprietary Unix. Now the difference with SCO being that they're not concerned about that so much as they were waiting for code to be in there, and once they found it, they said "We're not going to tell you so that. We don't want to give you an opportunity to remove it so Linux can be free of Unix and Unix can be free of Linux." P: Trojan horse ... P: Why, instead of showing a certain amount of greed, and saying "We will sue for $3 billion, and we won't give the Linux community an opportunity to remove that code", why aren't you giving the Linux community an opportunity to remove that code? It just seems like the only motivation behind not telling that, and giving the opportunity to remove that, would be greed. Darl(4:48): Well, I think going back to the economic side of it, the flip side of this argument is, so SCO is a company that for twenty years had Unix on Intel. They have a twenty-year legacy of selling that type of product line. And as you go into the turn of the century, Linux had moved along, and the 2.2 version of the kernel, you know, it was doing rather nicely, you could do two or four way systems together, and that was nice. But what's happened, from Linux 2.4 that came out, what was it, January 2001 or so, to current, there have been millions of systems shipped into the marketplace, OK? And the code increase during that period of time -- I'm sorry, the functionality increase of Linux during that point in time -- has gone up dramatically. And, with respect to scalability, and ability to get high-end enterprise scalability, and a lot of the code increase has come, and the functionality increase has come, from the vendors that we have these confidentiality agreements with. And so the question that came up earlier, was, you know, we're all working for free on this stuff. We have no problem with all of you guys that are working on this stuff for free. The problem we have on the economic modeling side of this, is the vendors that are getting an economic incentive to reducing the amount of royalties that they pay by virtue of taking our property and putting it into Linux, then turn around and saying it's a free system. P: The same pattern was followed by AT&T, though, with BSD. Darl(6:17): Yeah, but during that same period of time, there was still a lot of economic value to the System V code base. P: Well, sir, if you don't mind my asking. .. Darl: Sure. P: What is the absolute definitive answer to the question of why can't we just take the code out? I mean what... honestly, Linux is my livelihood right now. That's where I've been making all my money. If that goes away, you put a family on the street. Darl(6:42): Yeah, and we're not trying to get Linux to go away. We're trying to get damages that have been done to this company, a company that used to have a few hundred... You want to talk about economic damages. . . P: Well, damages, I mean, you're damaging my livelihood now. Should I turn around and countersue? Darl: There's hundreds of companies that used to work for this company that don't work here anymore. You know, revenue streams have gone from hundreds of millions down to 50, OK, 50, 60 in the last year, and so the question is, is intellectual property protectable, or not? Now we're in litigation, we're trying to get these things resolved. Now, you'll notice we haven't gone out and attacked RedHat. We haven't sued them. P: You just threatened. P: Sent out thousands of threatening letters. P: 1500. (laughter in audience) Darl: The point, the part of the concern... P: I've read several quotes where it says that individual users of Linux could possibly in the future be held accountable. Darl: So the problem then is when you have infringed code that is sitting there on the system. P: I have a uniprocessor system at home. I'm never going to touch any of this other code. Why should I have to pay a license for UNIX where ... Darl: We're talking about commercial users. P: What's the difference? Darl: We didn't send you a letter, right? We sent it out to commercial users. P: But the FUD is that I've read, I don't remember if it was you or Sontag, that said that individual users might have to pay sometime. And that kind of trash talking, I mean, the thing with IBM I think should be completely separate. Darl(8:05): Let me set one thing straight right now for you guys. We are not going after individual users. We're trying to say people who are commercially getting gain on this. And people who were getting commercial gain on Unix, and now they've gone over to this system. That is really where we have a major problem. That's where we're ... P: What's to stop you from pursuing that venture in the future? P: My company uses Linux, so are you going after my company? Darl: So, the question. Again, our focus is not on end users right now. We believe that there has been an IP hot potato that has been passed down to end users. And we are trying to get that resolved with the Unix vendor community. P: So, if I use Debian, which is a completely open-source distribution, nonprofit, why would I be possibly liable in the future for something, I mean. . .? Darl(8:55): I can't... Again, when I look at Debian versus what we're talking about with enter... I would really draw the line on enterprise class Linux versus what you're talking about. Right? 'Cause I think that there's a huge difference. I mean, when I hear what you're talking about, the thing that is interesting is, I would argue the point which is that's not where we're trying to go. Okay. Because our real beef is where the thing has been highly commercialized. When you get a 64-way system, and my guess is that the one you're using at home is not a 64-way system, right? That is really where we have a lot of concern. P: So, you opened, was it Unixware 3, or OpenSystem 3, I can't recall. It was back in 2000, you basically made that source code available to everybody. Darl(9:37): It wasn't Unixware. We've never taken our System V code and made that available. P: No it was system 3 of something. Darl(9:42): It was very, very early versions of that go back into the '70's that predate the commercialized versions of any of the forms of Unix. So, again, we would agree that there's things out there that, we're not trying to round up all this stuff and say "Boy, every ounce of Unix that is out there is protectable and SCO owns all this stuff", and you know that's not what we're saying, our focus is on the commercialized ... P: So, give me an example. If I create an embedded system, say an access point, or some motor controlling module, that uses a Linux kernel, is that infringing on SCO's intellectual property? Darl(10:13): Yeah, that's hard for me to say right now with respect to what you just said about that. P: Hewlett Packard has stated that they're supporting Debian. Would that be an infringing instance right there? It's major commercialized corporate backing. It's a non-profit distribution. Darl(10:33): Here's what I would say. In May, we had a lot of folks that were very concerned that, you know, that this was a big FUD case, and you guys didn't even have any code inside Linux, and so we said, you know what? We went back and said from a legal standpoint we're going to open some of this up just so that people understand that there are direct files of System V showing up in Linux. Then we said, we're going to move on and go through the month of June, and show this to people. And we've been showing it. Had dozens of people who have seen it. And every day, more people roll into here in Lindon, and we show them the code. And further what we've said is that when we get into July, we're gonna come back. We're getting feedback right now, and I would view this as a form of feedback, you guys are obviously telling us what you think. We're hearing feedback from users. (unclear) And then when we get into July... Pardon? P: What about all of your copyright violations? Not abiding by the copyright on the stuff that you have profited from all these years? Darl: We haven't seen those violations. But let me just finish up here... P: Have you ever read the license you distributed it under? Darl: I've said that as we move into July, what we want to be able to do is come out and state definitively, here's where we are. Here's how we want to try and move forward. And... P: Suppose a company that's based in Lindon that makes a lot of money off of technology has a web server that runs Linux. Would they be in infringement of your copyright? Like SCO, or something Darl(12:00): Again, back to web servers is not where I see the big problem. P: (snickering in crowd) Darl(12:09): When you talk about highly-scalable systems, and again, I'm not going to sit here today and say that that day in Lindon, Utah, on the corner of I-15 and 1600 North, we defined all the rules of this here. [laughter] What I'm trying to say here is the general approach here is ... individual use of Linux ... P: ... guys, he says we're too close to the road here. Darl: And commercialized Linux that has derived great benefit from folks that have Unix contracts with us is where we have a lot of problems. And our real goal as we get into July, we want to come out and definitively say "Here's how we're gonna try and move forward, and here's how we want to see things go forward." P: So, how is it cut and dry where the infringement occurred? Do you have substantial proof that one company ... Darl: Yeah. P: What about SGI? I mean, they've contributed significant code to NUMA scalabilities, so how is it that you're going after IBM but yet SGI is free and clear for the time being? Darl(13:09): We haven't said who's free and clear. What we have said is we have significant problems with IBM, we're working through those issues right now, and we hope to get resolution to those. But, ya know, we're working through these issues, we're dealing with them on a case-by-case basis, and we want to get resolution. P: Have you ever read the GNU Public License? Darl(13:30): Sure. P: Well, what about 100 thousand lines of copyright infringement on your part for every, maybe, one line that there might allegedly be on anyone else's part? Pleasant Grove Police Officer: Is there anything else here that we need to address? Darl: I think we're okay. Everybody has moved over here [unclear]. I just stopped to say hi to these guys for a minute. I'm gonna take off right now, so I think we're fine. . .but I appreciate... P: Before you take off, I was not able to get a very good picture of you off the web. Do you mind if I get another picture with you? [laughter] Darl(14:05): [unclear... laughter] You guys are awesome. I gotta go home, and you guys have a good weekend. P: While you're grabbing a picture, I did have one other question. So, you've talked about how your intent isn't to go after end users, and how certain companies you're not expecting to prosecute, whereas other companies you are. We see this as sort of uncertainty as much as the fear and doubt that SCO is propagating. We would enjoy an on-the-record statement from your company saying more or less the things you just told us. Darl(14:40): Yeah. I appreciate that. When you talk about fear, uncertainty and doubt, I mean, the point is that it is very certain that there is copyrighted code infringement violation problems we're dealing with here. And, it's also very certain that as we get into the next month, we want to try and figure out how to move things forward in a way that, you know, we can live together peacefully. We're gonna attempt to do that. P: Is there anything that we can do as a ... P: ... [unclear] unsettling with all the people you've infringed? All of the contributors to Unix, where you're not ... Where you're no longer honoring the GPL? Darl(15:10): We haven't seen that. P: Yea, of course. Because that's your own attorneys. . . P: Do you hope that the Linux kernel becomes completely Unix-free? Completely free of any potential copyright violations or patent violations, and everything? Is that your ultimate hope right there? Do you ...? Darl(15:30): Well, here's what I would say. I think on the Linux side, it's pretty clear that the processes are -- first of all, I think that the model here of you guys all being involved, and people all around the world being involved, and contributing in, and being involved as part of this community is outstanding. You know. Hats off. That's a very cool deal, OK? The part that is concerning is that when the code goes into the kernel, there is in fact not a vetting process to make sure there's not code violations in place. One of the hopes that I would have coming through this process that we would all come out with is a mechanism whereby the code can be vetted, it can be safe, it can be secure, so that we don't have these kind of problems coming up in the future. P: So is that a yes or a no? Do you hope that the Linux kernel is completely free of any violations whatsoever? Darl(16:22): Sure. P: How? P: I have one other question. Darl: That's what I think ... P: How would this vetting process work? Darl(16:28): Well, that's what I think needs to be understood and put together here with people that ... P: Linux developers don't have any access to know what the other code, where things came from ... Darl: Exactly, and that's where I think there's an opportunity to in fact work together on some of this. There's been sort of a "don't ask, don't tell" process over here which is ask for forgiveness, not permission, and to the extent that you can get some kind of an equilibrium here, where you've got proprietary here and you've got open over here. To the extent that we can come together, there some modeling there, I'm all for that. --end of Part One -- comment [] 5:18:04 AM     IBM's Jim Stallings on Linux and Proprietary Software There is an interview with IBM's Jim Stallings on Red Hat's site, and I thought you'd be interested in what he has to say about Linux in the enterprise going forward: "Q4: We touched on this a little bit earlier, but where does IBM see Linux evolving in the enterprise? "A4: In the enterprise, we see Linux continuing to grow into spaces that have been traditionally occupied by UNIX, until the differences are indistinguishable. As I said earlier, we see Red Hat Enterprise Linux 3 as being a big step in that direction. As Linux continues down this path, we can rely on the open source community to ensure that Linux both continues to improve, and remains rooted in open standards. That's important from our point of view. "Customers know that businesses can change very quickly -- because of the economy; changing security requirements, corporate consolidation, new business models or products (or competitors with new business models or products) -- and customers have to respond to that. Closed, inflexible 'one size fits all' business models and IT solutions are just not consistent with the business realities customers deal with in the real world. "The openness of Linux and our commitment to open standards will ensure that Linux continues to evolve in a way that meets customer's needs, so they can flex and adapt to changing circumstances. We call that being an 'On Demand' business. "Q5: Can you comment on the coexistence of open source and proprietary alternatives, given that IBM has solutions to offer in both worlds? "A5: It's not about open source versus proprietary solutions. It's about open source and proprietary solutions, which are based on open standards and so are working together. This way, the customer has choice. "As I've learned from customers in the past year, TCO means 'take cost out.' We have a global economy with slow growth, and in some geographies, no growth. So value is the killer app right now. Open source solutions can help customers get there. Increasingly, it's helping governments get there. So it's not going to be one or the other; it's going to be both. "We have a cohabitation strategy, not an exclusionary strategy built on proprietary software. There's no way you can remove open source from the picture at this point, and those who think you can are just fooling themselves. It's not going to be a proprietary-only world ever again." comment [] 5:12:05 AM     SCO Files 2nd Motion Asking the Red Hat Judge for a Delay on Discovery, Part Two Then, in Red Hat's "First Set of Interrogatories", still in the same pdf, it wants SCO to answer the following interrogatories, or questions: 1. If SCO contends that Red Hat or its customers are violating or have violated any UNIX intellectual property rights in which SCO has any legal interest, set forth with specificity the basis for that contention. 2. If SCO contends that Red Hat or its customers are misappropriating or have misappropriated any of its trade secrets, set forth with specificity the basis for that contention, including without limitation, the identity of any trade secrets and the circumstances under which those trade secrets were misappropriated. 3. If SCO contends that Red Hat or its customers have infringed any of SCO's rights protected by the Copyright Act, 17 U.S.C. Sections 101 et seq., set forth with specificity the basis for that contention, including without limitation, the identity of any copyrights that SCO claims are infringed and the basis for SCO's claim that Red Hat or any Red Hat customer has infringed that copyright. 4. If SCO contends that Red Hat or any of Red Hat's customers are required to pay a fee to license SCO's UNIX intellectual property, set forth the basis for that contention, including without limitation the amount of each and every such fee, the method used to establish the amount of that fee, the basis for the fee, and the terms of any associated license. 5. Provide the following information in a manner that precisely identifies each and every instance of copyright infringement that SCO maintains exists in any of Red Hat's Linux software or products: (a) Identify by title, version, module(s) and line(s) each and every portion of UNIX source code that you claim has been copied or has otherwise been incorporated into any Linux software in violation of any of SCO's copyrights; (b) For each and every portion of UNIX source code identified in 5(a) above, identify by title, version, module(s) and line(s) each and every corresponding portion of Linux source code that you claim was copied or otherwise incorporated from the identified portion of UNIX source code in violation of SCO's copyrights; (c) For each and every portion of UNIX source code identified in 5(a) above, describe whether SCO claims that the UNIX source code was literally copied, is a derivative of UNIX source code, copies the structure, sequence, and organization of the UNIX code, and any other manner in which SCO claims the Linux code infringes any of SCO's copyrights; (d) For each portion of the UNIX code identified in 5(a) above, identify the individual(s) who authored that portion of the code, the date that portion was written, and the date that portion became a part of the UNIX code; and (e) For each portion of the UNIX code identified in 5(a) above, identify each entity that had access to that portion of the UNIX code and the dates it had such access. 6. Identify every SCO Linux product, and every third party Linux product, that contains any code corresponding to the Linux code identified in 5(b) above. 7. Provide the following information to precisely identify each and every instance of misappropriation of SCO's trade secrets that SCO maintains exists in any of Red Hat's Linux software or products: (a) Identify by title, version, module(s) and line(s) each and every portion of Linux source code that you claim contains a trade secret of SCO's that has been misappropriated or otherwise wrongfully incorporated; (b) For each and every portion of Linux source code identified in 7(a) above, identify by title, version, module(s) and line(s) any portion of UNIX code that contains or embodies SCO's trade secret(s) that SCO contends has been misappropriated or otherwise wrongfully incorporated into the Linux source code; (c) For each and every portion of Linux source code identified in 7(a) above, describe SCO's legal basis for claiming that the Linux source code contains a trade secret of SCO's that has been misappropriated or otherwise wrongfully incorporated into Linux; (d) For each portion of the UNIX code identified in 7(a) above, identify the individual(s) who authored that portion of the code, the date that portion was written, and the date that portion became a part of the UNIX code; and (e) For each portion of the UNIX code identified in 7(a) above, identify each entry that had access to that portion of the UNIX code and the dates it had such access. 8. Excluding the instances of copyright infringement and trade secret misappropriation identified in SCO's responses to Interrogatory Numbers 5 and 7, provide the following information to precisely identify each and every instance of infringement of SCO's intellectual property rights that SCO maintains exists in any of Red Hat's Linux software products: (a) Identify by title, version, module(s) and line(s) each and every portion of Linux source code that SCO claims infringes any intellectual property right of SCO; (b) For each and every portion of Linux source code identified in 8(a) above, identify each and every intellectual property right(s) of SCO that SCO claims is/are infringed by the identified portion of Linux software (e.g., patent number and claim, contract by parties and date or similar identifying information, a description of the know how at issue and a description of the methods at issue); and (c) for each and every portion of Linux source code identified in 8(a) above, further specifically identify by title, version, module(s) each and every corresponding portion of UNIX source code that you claim embodies the intellectual property right(s) that is/are infringed. 9. Describe with particularity the process(es) that SCO undertook to determine that Linux infringed the intellectual property rights of SCO, including without limitation, the date the process(es) began, the intellectual property rights examined or analyzed, the identity of all persons involved in determining for SCO that Linux infringed the intellectual property rights of SCO and each such persons specific role(s), and all reports or other documents concerning the infringement of SCO's intellectual property rights that were generated. 10. Identify the manner in which any SCO Linux product that contains any code corresponding to the Linux code identified in Interrogatory Numbers 5(b) or 7(a) above was marked and created, identify the extent of any modifications to non-SCO Lilnux that SCO made in creating SCO Linux, and identify the individuals involved with the marketing and creation of such SCO Linux product(s). 11. For the period from 1993 to present, identify each and every version of UNIX (including each UNIX kernel or UNIX operating system) and Linux (including each Linux kernel or Linux operating system) that SCO, or any company that was or is affiliated with SCO, has sold, licensed, distributed, or otherwise transferred rights to. 12. Identify each license, including the parties, date and terms, that SCO has executed or negotiated since January 1, 2003 in conjunction with any licensing initiative, licensing program, SCOsource, or otherwise in conjunction with SCO's claims that Linux infringes any of SCO's copyrights, trade secrets or other intellectual property rights of SCO. 13. Identify each Linux end user or potential Linux end user that SCO has contacted concerning its claims that Linux infringes SCO's copyrights, trade secrets or other intellectual property rights of SCO. 14. Identify each person that SCO has shown examples of UNIX or Linux source code that SCO claims provides a basis for any of SCO's claims that Linux infringes any of SCO's copyrights, trade secrets or other intellectual property rights of SCO, including all persons that viewed such examples at any 'viewing facility' established by SCO. 15. Identify each and every meeting SCO has had with any financial, stock or industry analyst (including Deutsche Bank) from January 1, 2001 to present, including without limitation the date of each meeting, the persons that attended each meeting, the subjects discussed at each meeting, and the reasons for each meeting. 16. Describe with particularity the relationship between the Canopy Group and SCO, including without limitation, any direct or indirect ownership interests of each company in the other, the corporate structure of and purpose of the Canopy Group, the instances and amounts of money and stock transferred between SCO and the Canopy Group from January 1, 2001 to the present, any intellectual property transferred between Canopy and SCO from January 1, 2001 to the present, all agreements between SCO and Canopy, including any license agreements, from January 1, 2001 to present. SCO has responded to the discovery requests by telling the judge they'd like a delay: In SCO's Motion to Stay Discovery, it tells the judge that it shouldn't have to respond to Red Hat's requests for discovery at this time, because they've filed a motion to dismiss, and until the motion is ruled on, they'd rather not tell Red Hat anything, because it'd be "wasteful" and so very time-consuming. After all, if their Motion to Dismiss the case in its entirety is successful, then they won't have to do discovery at all. Besides, similar discovery is ongoing in the IBM case, they argue, so a brief delay won't cause any evidence to disappear (like it'd be a great strain to Xerox an extra copy). And it'd cost a lot for SCO to have to produce all the discovery materials requested, they argue. And since the Motion to Dismiss is based on the law, and not on the merits of the case, they say, none of the discovery is needed for Red Hat to answer their Motion to Dismiss, and furthermore, they already filed their reply to the motion, so obviously they don't need the requested documents to do that. (I'd argue with their contention that their Motion to Dismiss is based only on the law, because one of their main points was that they never intended to sue Red Hat until after the IBM matter. That's not an issue of law, but of fact, but they are naturally going to tell the judge only the parts it wants her to hear.) If the judge doesn't dismiss their case in its entirely, they'd like 30 days to respond to the discovery requests. In short, delay, delay, delay. The same song they sang in Utah to get matters postponed until February of 2004. Red Hat has also filed an amended brief, according to this letter, correcting some typos in the original. That will make Grokkers happy, I know, judging from comments and email I got. Then, in the final document, Stipulation and Order to Extend Time, the parties agreed to give SCO until October 10 to file its reply to Red Hat's answering brief to SCO's Motion to Dismiss and the judge so ordered on October 6. Remember the tennis balls? This is SCO's final word, normally, in this round on the Motion to Dismiss. The judge next will decide the SCO Motion to Dismiss, after it gets the next SCO filing on the 10th, but now there is a second motion, and Red Hat will have an opportunity to reply to this new Motion to Stay Discovery . Motion practice can be confusing, but the bottom line is this: there are two motions from SCO now before the judge. First, we had the original Motion to Dismiss, asking the judge to make this whole thing go away. Red Hat replied to that saying please don't, and then it filed for discovery. SCO doesn't want to do discovery, because it hopes to get away scot free by getting the case dismissed, so it has filed a Motion to Stay Discovery. Stay just means put off until a future date, or postpone. So the second motion is asking for a postponement of discovery until after the judge rules on the first motion. Confused yet? I hope not, because we've only gotten started. If the judge doesn't grant them the delay, I expect next SCO will start specifically refusing to answer certain questions and refusing requests for documents, just as they are in the IBM case, and then that will probably end up before the judge in Delaware, with Red Hat having to bring the problem to the judge for resolution, just as IBM is having to do in Utah. In short, SCO appears to be looking for delays in both cases, which is exactly what the Linux/free software community has been saying from the beginning, that SCO didn't want to bring this to trial in a speedy way. The media back then seemed to think otherwise, but now we have Exhibit A, you might say. The proof is in the pudding. We'll find out how it plays in Delaware and fairly soon. Red Hat's attorneys did a wonderful job on these discovery demands, and if SCO answers even half of them, I expect it'll be curtains for them, depending of course on what evidence it can produce to support its claims, if any. I typed this up mighty fast, because I wanted reporters and other interested parties to be able to quote from the list easily, and because I enjoyed reading it and wanted everyone to do the same without having to download a pdf. But the pdfs are what you should use for anything that matters, in case there may be typos and because I formatted it to fit a smaller space. And now, a bit of champagne for me. comment [] 5:10:44 AM     SCO Files 2nd Motion Asking the Red Hat Judge for a Delay on Discovery There has been quite a lot of activity in the Red Hat case. SCO filed a Motion to Dismiss the action in its entirety, as you know, and Red Hat filed its answering brief. But since we last reported on this case, Red Hat initiated discovery. They asked SCO for documents and for answers to some pointed questions. IBM is forcing SCO into a corner in Utah, and Red Hat is forcefully and aggressively trying to do the same in Delaware. You'll see, I think, that we haven't been wasting our time telling the world the details of this story. The big picture is that Red Hat is telling SCO to prove their allegations with specificity. They also want all their source code, and I'm sure you can figure out what they want to do with it, when I tell you that they asked for the complete Linux Kernel Personality source code, among the other products for which they have requested source code. They also want to hear some details about the relationship between Canopy and SCO, including any stock or intellectual property transfers. They want SCO to "identify by title, version, module(s) and line(s)" what they think is misappropriated in any way or in violation of any of its rights. They ask for the details of Microsoft and Sun's licensing arrangement with SCO. They want to know who those 1500 companies were that got the letter, and what happened next. They want to know exactly what SCO has filed a copyright on. They want all the details of SCOsource, including all the folks who have seen the code SCO has been showing under the NDA and what they saw, and any other contact with any Linux users about supposed liability. They want to know how they compared the UNIX and Linux code to determine infringement. They want to know if they've done any comparisons of the two and what the results were. They want to know all the stock or industry analysts SCO has met with or talked to and what was said. In short, it's like the kind of fantasy a guy might have about a bully getting his at last, because they asked them everything we wanted somebody to finally ask SCO and make them answer. SCO responded to Red Hat's discovery requests by filing a new motion, and it has told the judge, in a Motion to Stay Discovery Pending Resolution of Motion to Dismiss, it would like a delay until after the first motion, the Motion to Dismiss, is ruled on. They surely don't seem in any hurry to get this matter resolved. They argue that because they are simultaneously providing discovery to IBM (of course IBM says they aren't seeing anything, as I recall), they can't possibly do both, and anyway, if they win their motion, it'd be moot. In short, they would very much like not to have to do this, presumably so that if they win the Motion to Dismiss they can continue to refuse to give any particulars about their case. If the judge doesn't grant their Motion to Dismiss, they'd like the judge to give them 30 days to provide all the discovery items. Both of Red Hat's discovery documents are attached to this SCO Motion to Stay Discovery, and they begin with definitions, like what is "intellectual property" within the context of the document, and instructions, like how to identify the writers of documents, etc.. The first document begins on page 7 of the pdf, but we find out what Red Hat is asking for on page 12, where the list begins. Red Hat in its "First Request for the Production of Documents and Things" asks SCO to produce the following documents: 1. All documents concerning the subject matter of the Complaint. 2. All documents concerning any customer, or potential customer, of Red Hat. 3. All communications between SCO and Red Hat or any employee of Red Hat. 4. All communications between SCO and any user or potential user of a Linux product, including Red Hat LINUX product, concerning any rights to Linux, or UNIX that SCO claims to have or concerning any actions by Red Hat that SCO claims are wrongful. 5. All documents that concern any and all copyrights in which SCO claims an ownership or other legal interest of any kind and that also concern any UNIX software or UNIX product. 6. All documents concerning the registration of any copyrights in any UNIX software or UNIX product, including, without limitation, all documents submitted by SCO to the United States Copyright Office concerning UNIX. 7. All documents concerning the purposes of SCOsource, the formation of SCOsource, any intellectual property managed by SCOsource, and all correspondence to or from SCOsource or any director, officer, employee, attorney or agent employed by, assigned to, or acting on behalf of SCOsource. 8. At least one example of each license agreement that SCO has used to license each and every UNIX product, UNIX software, or UNIX service, any open source software, product or service, any Linux product, Linux software or Linux service, or to license each of the following: UnixWare, UnixWare 7, UnixWare 7.1.1, Unixware 7.1.2, UnixWare 7.1.3, Open UNIX, Open UNIX 8, Reliant HA, NeTraverse Merge, Merge, Merge 5, SCO OpenServer, SCO OpenServer Release 5.0.5, SCO OpenServer Release 5.0.6, SCO OpenServer Release 5.0.7, OpenServer Kernel Personality, OpenServer Kernel Personality for UnixWare 7.1.3, SCOx Web Services, SCOx, SCO Update Service, SCO Linux, SCO Linux 4.0 Server for the Itanium Processor Family, SCO Linux 4, SCOoffice, SCO Volution, Caldera Volution Manager 1.1, SCOoffice Mail Server 2.0, Caldera Volution Messaging Server 1.1.1, Caldera Volution Messaging Server 1.1, OpenLinux, OpenLinux 3.1, OpenLinux 3.1.1, OpenLinux 64, UnitedLinux, UnitedLinux 1.0, United Linux 1.0, UnitedLinux 1.0 Service Pack 2, UnitedLinux 1.0 Service Pack 1, Samba, Samba Multibyte version, Cdrtools, Mozilla Browser. 9. Documents sufficient to show each and every entity that had access to any portion of UNIX code that SCO contends was copied or was otherwise incorporated into any Linux software in violation of any of SCO's copyrights, trade secret or other intellectual property. 10. All documents that concern any SCO licensing program, including any licensing program offered by or in conjunction with SCOsource. 11. All documents concerning any license of any UNIX kernel, UNIX operating system or UNIX intellectual property that SCO has offered, is offering or intends to offer, including, without limitation, all license agreements with any entity that had access to each and every portion of the UNIX code SCO contends was copied or was otherwise incorporated into any Linux software in violation of any of SCO's copyrights. 12. All documents concerning any SCO license with Microsoft and Sun Microsystems, Inc. ('Sun'), including copies of the licenses, correspondence concerning the licenses, and notes or other documents related to any meeting concerning the licensed technology or negotiations of the license. 13. All documents concerning communications between SCO and Microsoft and/or SCO and Sun Microsystems regarding: Red Hat, Red Hat's actual or potential customers, UNIX, Linux, IBM, and Sun Microsystems' or Microsoft's licensing of any SCO technology, software or product. 14. All documents concerning SCO's ownership of UNIX intellectual property and/or concerning SCO's right or ability to enforce or protect UNIX intellectual property. 15. All documents concerning any other person or entity's ownership of any UNIX intellectual property and/or concerning any other person or entity's rights to enforce or protect UNIX intellectual property. 16. All documents concerning communication between SCO and Novell Inc. ('Novell') regarding ownership of UNIX intellectual property, including without limitation, contracts or agreements between SCO and Novell regarding UNIX or Linux, all correspondence between SCO and Novell regarding UNIX or Linux, all correspondence between SCO and Novell concerning UNIX or Linux, and documents concerning Novell's past or present ownership of any rights in any UNIX or Linux technology, software, product or service. 17. All documents concerning SCO's legal claims against IBM or any pending litigation with IBM. 18. All documents concerning both the development of UNIX and ownership rights in UNIX intellectual property. 19. All documents and communications regarding IBM's misappropriation, or alleged misappropriation, of UNIX intellectual property, code, structure, sequence, organization or other proprietary information, including, without limitation, all such documents concerning any agreements with IBM regarding UNIX, the development of UNIX, rights to UNIX software or technology, Linux, the development of Linux, or rights to Linux software. 20. A copy of the source code of each and every version of UNIX software in which SCO claims to own any intellectual property rights or have any other legal interest, and a copy of the source code of each and every version of Linux software in SCO's possession custody, or control that was created on or after January 1, 2000, whether or not released for public use, licensing or sale, and a copy of the source code of each and every version of UNIX software that SCO has sold, offered for sale, licensed, and offered to license. 21. The source code of any SCO Linux product and any third party Linux product identified in response to Interrogatory No. 6. 22. A copy of the source code for each version of the following: UnixWare, UnixWare 7, UnixWare 7.1.2, UnixWare 7.1.3, Open UNIX, Open UNIX 8, Reliant HA, NeTraverse Merge, Merge, Merge 5, SCO OpenServer, SCO OpenServer Release 5.0.5, SCO OpenServer Release 5.0.6, SCO OpenServer Release 5.0.6, SCO OpenServer Release 5.0.7, OpenServer Kernel Personality, OpenServer Kernel Personality for UnixWare 7.1.3, SCO Linux, SCO Linux 4.0 Server for the Itanium Processor Family, SCO Linux 4, OpenLinux, OpenLinux 3.1, OpenLinux 3.1.1, OpenLinux 64, UnitedLinux, UnitedLinux1.0, UnitedLinux 1.0 Service Pack 2, UnitedLinux 1.0 ServicePack 1. 23. All documents concerning examples of UNIX and Linux software code that SCO has shown to any third party in conjunction with its claims that Linux infringes SCO's intellectual property rights in any UNIX software or technology, including without limitation, all such documents concerning any examples of UNIX code that were displayed to the public, including without limitation at SCO Forum and/or in Las Vegas, Nevada and/or during the month of August 2003, and including, without limitation, all such documents concerning any examples of UNIX and Linux code that have been displayed at any facility that SCO has set up to show examples of UNIX code to any third-party in conjunction with any claim by SCO that any Linux software or kernel infringes any intellectual property right of SCO in UNIX or any UNIX software. 24. All documents concerning any non-disclosure agreement that SCO or any other person has executed in conjunction with its claims that Linux infringes SCO's intellectual property rights in any UNIX software or technology. 25. If SCO contends that any portion of the UNIX code, or the structure, sequence, or organization of the UNIX software, was made a part of Linux, copies of all UNIX code generally, and specifically copies of that which SCO contends has been made a part of Linux. 26. All documents identifying any portion of the UNIX code, or the structure, sequence, or organization of the UNIX software that is a part of Linux. 27. All documents identifying any SCO intellectual property or proprietary information that has been incorporated into Linux, including without limitation, any trade secret or copyrighted software, and/or concerning the circumstances whereby any SCO intellectual property, trade secret or proprietary information became a part of Linux. 28. All documents concerning IBM's development of Linux to the extent that the development relates to any UNIX intellectual property right, including such documents regarding Project Monterey, and all documents that establish when SCO first became aware that IBM had made or may have made contributions to Linux. 29. All documents concerning SCO's and/or SCOsource's review and enforcement of its intellectual property rights surrounding the UNIX operating system. 30. All documents concerning SCO's distribution or involvement in the distribution of Linux including UnitedLinux. 31. All documents concerning SCO's development of Linux software and United Linux software, including, without limitation, communications regarding any SCO employee or former employee's contributions to Linux and UnitedLinux, and documents concerning whether UnitedLinux contains any SCO UNIX intellectual property. 32. All documents concerning any analysis or comparison of UNIX and Linux and all documents and communications concerning any investigation into Linux and whether that software contains UNIX intellectual property. 33. All documents describing Open UNIX 8, including all technical documentation, licensing parameters, how the product is sold, distributed and/or implemented, and any comparison or analysis of Open UNIX 8 and Linux. 34. All documents concerning any analysis or comparison of UNIX and Linux code, sequence, structure, or organization, including, without limitation, such documents regarding the benefits or functionality of Linux as compared to the UNIX software product. 35. All documents concerning the statements made in a letter posted on SCO's website providing that SCO's own Linux customers would not be liable to SCO for actions it may take against other Linux users who are not SCO customers. 36. All documents concerning the basis for SCO's claim for damages in the action pending against IBM in the District of Utah. 37. All documents concerning the statements made in the letter dated on or about May 12, 2003, sent by SCO to approximately 1,500 Linux users or potential users including the documents that form the basis for SCO's statement in that letter that SCO believed its intellectual property and other rights were infringed. 38. All documents referred to in preparation of or concerning the SCO presentation made at Deutsche Bank Securities ('DBS') on or about July 22, 2003, and all documents provided to DBS for the preparation of any DBS financial and/or industry report. 39. From January 1, 2003 to present, all documents concerning any communications with financial or industry analysts, including any communications or meetings with financial analysts that cover Red Hat stock. 40. All documents concerning any public statements made by SCO that pertain to the subject matter of the Complaint. 41. All documents concerning the statements made by Darl McBride in a CRN.com interview entitled, 'Update: CRN Interview: SCO Defends $1 Billion Lawsuit Against IBM,' including the following statements: (a) '[t]here will be a day of reckoning for Red Hat and SuSE when this is done'; and (b) 'IBM took chunks [of code] out of [Project] Monterey, and gave it away. You can find it in Red Hat and SuSE Linux.' 42. All documents concerning the statements made by Chris Sontag in a Mozilla QuestOnline Magazine article entitled 'SCO-Caldera v. IBM: SCO Clears Linux Kernel but Implicates Red Hat and SuSE,' available at http://www.mozillaquest.com/Linux03/ScoSource-10_Story01.html including the following statements: (a) 'We are using objective third parties to do comparisons of our UNIX System V source code and Red Hat as an example. We are coming across many instances where our proprietary software has simply been copied and pasted or changed in order to hide the origin of our System V code in Red Hat'; and (b) 'We're not talking about the Linux kernel that Linus and others have helped develop. We're talking about what's on the periphery of the Linux kernel.' 43. All documents concerning the following statements: a) made in SCO's May 14, 2003 press release, including the statement that 'The SCO Group . . . today warned that Linux is an unauthorized derivative of UNIX and that legal liability for the use of Linux may extend to commercial users'; b) made in SCO's May 14, 2003 press release, including the statement that 'SCO will continue to support existing SCO Linux and Caldera OpenLinux customers and hold them harmless from any SCO intellectual property issues regarding' those products; c) made by Chris Sontag in a CNET News.com interview entitled 'SCO May Expand Linux Case Soon,' including the statements(a) that SCO 'may bring subsequent actions against Linux software developers such as Red Hat and SuSE'; and (b) 'Do we have potential issues with Red Hat, SuSE and other commercial Linux distributors - yes, we might'; d) made by Darl McBride in a CNET News.com interview entitled 'Why SCO Decided to Take IBM to Court' including the statement that 'if in fact users are running systems that have basically pirated software inside of there, or stolen software inside of their systems, they have liability. We're not saying that they created that liability; we think there are a number of parties along the way that generated that. But we feel like we have an absolute requirement to let them know what was going on as we went down this path'; e) made by Chris Sontag in a VNUnet.com interview entitled 'Interview: SCO chief Darl McBride part 2' included the response 'Yeah. that one is a no-brainer' to the question 'Are you still saying categorically that there is offending code in the Linux kernel?'; f) made in SCO's July 21, 2003 Press Release including the statements that SCO 'will offer UnixWare licenses tailored to support run-time, binary use of Linux for all commercial users of Linux based on kernel version 2.4.x and later. SCO will hold harmless commercial Linux customers that purchase a UnixWare license against any past copyright violations, and for any future use of Linux in a run-only, binary format'; g) made in SCO's July 21, 2003 Press Release including the statements that 'SCO indicated last week that Linux end users could face liability for running it in their organization. Beginning this week, the company will begin contacting companies regarding their use of Linux and to offer a UnixWare license'; h) 'Since the year 2001 commercial Linux customers have been purchasing and receiving software that includes misappropriated UNIX software owned by SCO'; i) made in SCO's July 21, 2003 Press Release including the statements that 'Today, we're stating that the alleged actions of IBM and others have caused customers to use a tainted product at SCO's expense. With more than 2.4 million Linux servers running our software, and thousands more running Linux every day, we expect SCO to be compensated for the benefits realized by tens of thousands of customers'; and j) made in SCO's July 21, 2003 Press Release including the statements that 'We have a solution that gets [Linux users] clean, get [Linux users] square with the use of Linux without having to go to the courtroom.' 44. SCO's quarterly and annual financial reports from the day SCO acquired the rights to UNIX to present, and documents sufficient to identify SCO's sales and profits since the date SCO acquired the rights to UNIX to the present. 45. All documents concerning a Linux Lottery or the phrase the "Linux Lottery'. 46. All documents concerning revenue generated by any SCO licensing program or licensing initiative, including any analysis or projection of revenue that could be earned by virtue of a Linux licensing program, UNIX licensing program. SCOsource licensing program, or SCOsource licensing initiative. 47. All documents concerning the establishment or setting of UNIX licensing fees by SCO, including without limitation documents related to licensing fees associated with any technology owned or managed by SCOsource, any contention by SCO that users of Linux must pay a fee of any kind to SCO, and any licensing fees related to other SCO UNIX technology, software, products and services. 48. All documents concerning both the Canopy Group and UNIX, including without limitation, communications with the Canopy Group regarding UNIX. 49. If SCO contends that Red Hat or its customers have violated any of its rights in UNIX software (including without limitation any copyrights or trade secrets), all documents concerning that contention. That last part about finances is presumably so Red Hat can figure out its damages if it wins. -- end of part one -- comment [] 5:08:52 AM

© Copyright 2003 PJ. Last update: 10/19/03; 9:06:26 AM. This work is licensed under a Creative Commons License.