SCO owns the World? [LWN.net]

According to some opponents of free software, users of that software are taking grave risks. The GPL, it is said, is "viral" and can cause the loss of a company's intellectual property. And free software users are exposed to the possibility that somebody, somewhere, may have incorporated tainted code, exposing users and distributors to unexpected liabilities. The solution to these problems, of course, is to simply stick with safe, licensed, proprietary software. It costs, and you sign away a lot of rights, but the warm, fuzzy feeling that comes from signing that license agreement is worth it.

Except it's increasingly clear that things are not that way. We all owe SCO a debt of gratitude for showing us how unsafe proprietary software can be. That company is using proprietary licensing to press a truly staggering set of claims over the work of others and power to disrupt organizations worldwide.

Consider first the issue of intellectual property. SCO CEO Darl McBride recently gave an interview which provided a clear picture of how he sees the ownership of proprietary Unix systems:

Where people get a little confused is when they think of SCO Unix as just the Unix that runs the cash register at McDonalds. We think of this as a tree. We have the tree trunk, with Unix System 5 running right down the middle of the trunk. That is our core ownership position on Unix.

Off the tree trunk, you have a number of branches, and these are the various flavors of Unix. HP-UX, IBM's AIX, Sun Solaris, Fujitsu, NEC--there are a number of flavors out there. SCO has a couple of flavors, too, called OpenServer and UnixWare. But don't confuse the branches with the trunk. The System 5 source code, that is really the area that gives us incredible rights, because it includes the control rights on the derivative works that branch off from that trunk.

These "control rights" are at the core of the IBM lawsuit. SCO is claiming that any work any vendor has ever put into a Unix system is subject to SCO's control. Chris Sontag, the head of SCOsource, is even more direct:

We believe that UNIX System V provided the basic building blocks for all subsequent computer operating systems, and that they all tend to be derived from UNIX System V (and therefore are claimed as SCO's intellectual property).

SCO, it would seem, owns everything. Compared to that claim, the allegedly "viral" nature of the GPL (if you distribute something derived from a GPL-licensed product, the derived product must also be licensed under the GPL) seems weak indeed. SCO is laying claim to decades of work done by dozens of proprietary Unix vendors, and that's just the starting point.

Does this claim have any basis in reality? SCO has posted the relevant agreements on its IBM lawsuit page, so this sort of thing can be checked - at least, for the IBM case. The basic software agreement ("Exhibit A") states (in section 2.01):

Such right to use includes the right to modify such SOFTWARE PRODUCT and to prepare derivative works based on such SOFTWARE PRODUCT, provided the resulting materials are treated hereunder as part of the original SOFTWARE PRODUCT.

Since the agreement on the original "SOFTWARE PRODUCT" includes prohibitions on disclosure, this language would seem to back up SCO's claim. Thus, technologies like read-copy-update, which were never part of any SCO product, could be said to come under this agreement and be prohibited from disclosure. In fact, the language could even be read to transfer ownership of any modifications to SCO, except that IBM caught that and forced a change ("Exhibit C"):

Regarding section 2.01, we agree that modifications and derivative works prepared by or for you are owned by you. However, ownership of any portion or portions of SOFTWARE PRODUCTS included in any such modification or derivative work remains with us.

So IBM owns its changes. But the company might have signed away its right to disclose its changes to others or deploy them in other contexts. Other vendors with less-aware lawyers may well have signed away all ownership to their Unix work. So much for the safety of intellectual property in the proprietary environment.

Of course, all this is IBM's problem. As SCO and others have stated, customers are better off with licensed, proprietary software, since it is warranted against intellectual property problems. Sun Microsystems plans to press this point to its advantage. The only problem is that, once again, SCO has shown us that this statement is not true.

SCO is attempting to revoke IBM's license to distribute AIX. This move does not just affect IBM; consider this quote from Chris Sontag, the head of SCOsource:

SCO said that the termination of the AIX license means that all IBM Unix customers also have no license to use the software. "This termination not only applies to new business by IBM, but also existing copies of AIX that are installed at all customer sites. All of it has to be destroyed," Sontag said.

All of those AIX customers did exactly what they are supposed to do: they signed a proprietary license, paid their fees, and went off with the idea that they had bought the right to use the system on their machines. Now it appears that Unix users, at SCO's whim, can be deprived of the software upon which they have built their businesses. Proprietary Unix, it would seem, is a foundation built upon sand. Given that Microsoft felt the need to buy a Unix license from SCO, it is not clear that Windows users are in any better shape. One might assume that SCO would not try to pull the plug on Windows, but the possibility exists regardless. We look forward to the forthcoming warning from the Gartner Group.

SCO's actions have pointed out the very real possibility for trouble resulting from the incorporation of proprietary code into a free product. This is an issue that should probably be taken more seriously throughout the free software community in the future. But SCO has also made it painfully clear that the proprietary world, too, has its traps, and those traps are at least as frightening as any faced by free software users. Taken to their extreme, the proprietary rights claimed by SCO give that company ownership and control over most computing systems on the planet. It is a frightening thing to contemplate.

to post comments

SCO owns the World?

Posted Jun 17, 2003 18:37 UTC (Tue) by jzb (editor, #7867) [Link] (8 responses)

If SCO attempts to press this to its "logical" conclusion, they'll also find themselves staring down the barrel of the combined legal might of Microsoft, IBM, HP, Fujitsu, etc... not a pleasant place to be for a company that will probably burn through all of its cash in a lot less time than it would take for this to wind its way through the courts.

It amazes me how brazen Sontag and Co. are being. I can only hope the payback is just as harsh.

SCO owns the World?

Posted Jun 17, 2003 18:51 UTC (Tue) by allesfresser (subscriber, #216) [Link] (7 responses)

Of course, if the claims are upheld by some raging maniac of a judge (or more likely, a group of Springer fans for a jury), the free world could be threatened, and good ol' Bill would be forced to buy out SCO to save all the Windows users, and then where would we be...? Truly scary.

SCO owns the World?

Posted Jun 17, 2003 19:33 UTC (Tue) by StevenCole (guest, #3068) [Link] (4 responses)

Thus quoth Chris Sontag:

We believe that UNIX System V provided the basic building blocks for all subsequent computer operating systems, and that they all tend to be derived from UNIX System V (and therefore are claimed as SCO's intellectual property).

I wonder if this includes OpenVMS, Plan 9 and The K42 Project?

In regard to BSD variants, doesn't the outcome of The 1993 USL vs BSDI lawsuit have any bearing in this matter?
It would be ironic if this is what protects the boys from Redmond due to their (alleged) use of BSD code in their TCP/IP stack.

Or will screaming loudly and throwing chairs be sufficient?

SCO owns the World?

Posted Jun 17, 2003 20:42 UTC (Tue) by jeff@uclinux.org (guest, #8024) [Link]

Sontag also said that Berkeley "might have" (read: we believe has) broken the terms of
the settlemet agreement from the '93 suit and BSD could be affected as well. He refused
to say Windows was not affected (BSD again, one assumes), and specifically said that MS
has only licensed that API layer.

They are going for broke.
Collective insanity caused by group think would seem to be at fault in SCO's mgmt.
As they keep making these claims, that becomes more and more clear. Just a little
more and they will have blown all the credability they might have started with even
outside the tech sector. At which point it will just be a waiting game as it winds
down... and out. No court is going to let them claim all the IP developed by the
worlds biggest compainies, in the OS space as a whole, across my entire lifetime.

SCO owns the World?

Posted Jun 18, 2003 10:53 UTC (Wed) by fatrat (guest, #1518) [Link] (2 responses)

There's nothing alleged (or illegal, or wrong) about MS use of
BSD networking code - it's there in the headers. Though of course
you need to buy something like VC++ to see the headers.

The whole point of the BSD license is that it lets you use
BSD code and then sell the resulting product on.

http://www.wikipedia.org/wiki/BSD_License

Arthur

SCO owns the World?

Posted Jun 18, 2003 14:56 UTC (Wed) by StevenCole (guest, #3068) [Link]

That may be clear to you, me, Microsoft, and the rest of the world, but apparently the ability of SCO to see things differently is unlimited.

From the Byte article:
Byte: "But I thought that Microsoft had signed a license agreement?"
Sontag: "No, Microsoft merely licensed an 'applications interface layer'."

Maybe they're thinking, "Hey, Microsoft has a lot of cash, maybe we can sue them too!"

Now that that would really be fun to watch. Like a Chihuahua picking on a Pit Bull and a Wolverine at the same time.

SCO owns the World?

Posted Jun 19, 2003 22:12 UTC (Thu) by spitzak (guest, #4593) [Link]

The point is that SCO could claim the BSD code infringes their copyright,
and thus Microsoft's use of it is illegal. The BSD license does not
protect against this. Otherwise I could steal that new copy of the Harry
Potter book, publish it on the internet, and say "I put it under the BSD
license" and that would somehow protect me and anybody who read it from
the publisher's wrath.

SCO owns the World?

Posted Jun 17, 2003 21:35 UTC (Tue) by crouchet (guest, #1084) [Link]

I wonder what it would cost IBM to buy SCO. I can imagine MS having some very anxious moments.

SCO owns the World?

Posted Jun 26, 2003 18:23 UTC (Thu) by mmarq (guest, #2332) [Link]

Hey,... though Windows is not a derivative of Unix System V, is a derivative of DEC minicomputers systems (VMS), and though Windows "supposedly" has no other "flavor", what is good for SCO is good for Windows, in the sense that this "Broad Derivative Work Interpretation" has nothing "UMBREACKABLE" that does hamper it from being applied to applications. WHY?... because a "Derivative Work Interpretation" dosent explicitly state that running on a processor protected mode or not makes any difference...
... par example microkernels OSes are mostly, or large parts, "userspace" code, yet the all code is called an OS..
...another example IBM OS/2 WRAP could be a "flavor" of Windows because it takes advantage of core parts of windows, but considering that most if not all runs in userspace, it might be more "APPROPRIATE CALL IT AN APPLICATION".
...so...applications can be throw in the same basket...

"In the end who wins more with all this will be "old Bill's M$", wich as nothing to fear from SCO".

"The only safe chance is for Linux as a non derivative of neither to win all the way, in desktop and embeded".

Show us the ``intellectual property'' underpinnings

Posted Jun 18, 2003 18:33 UTC (Wed) by Max.Hyre (subscriber, #1054) [Link] (1 responses)

I.e., not the source code that you're claiming was copied, but the legal basis for your claim.

As the FSF clearly points out, the phrase intellectual property is a recent chimera [1], combining as it does not only apples and oranges, but the the greenness of the designated-hitter rule. The concepts usually comprised in ``intellectual property'' are

patent
copyright
trademark
trade secret

each of which is its own, very specialized, branch of the law, with very different rules, procedures, and penalties.

Now SCO is not claiming (though occasionally insinuating) trade secret problems. (Even if they were, their publishing of Linux source would blow that claim completely out of the water.)
I've seen nothing hinting there's a trademark aspect to this affair, especially as `Unix' is a registered trademark of The Open Group. That leaves only patent and copyright.
Patent is excused via the Novell contract with SCO. Though SCO claims that Amendment #2 modifies that contract, they (SCO) avoid claiming any patent rights as a result.[2] Which brings us down to...
``SCO's lawsuit against IBM does not involve [...] copyrights.''
So it's all about contracts. The nice part of this is that a contract between Alice and Bob establishes no requirements for, or rights over, Carol (unless Carol is employed by one of the contracting parties). Thus, this contract dispute can have no effect on 3rd-party Linux users, be they individuals or corporations. Contract matters cannot spread to devour the world the way, say, patent can.

Therefore, the world reverts to its previous owners. Q.E.D.

That's it for now, but watch out for new lies, counter-assertions, reverses, and general smokescreening. :-)

Best wishes,
Max Hyre

[1] No relation to web browsers...

[2] Mozillaquest covers this in stupefying detail. Their story is particularly interesting for its factual citations, which too many screeds related to this mess are missing.

Show us the ``intellectual property'' underpinnings

Posted Jun 18, 2003 21:08 UTC (Wed) by StevenCole (guest, #3068) [Link]

Now SCO is not claiming (though occasionally insinuating) trade secret problems. (Even if they were, their publishing of Linux source would blow that claim completely out of the water.)

Actually, it seems they are. See their recently Amended Complaint. Their "Sixth Cause of Action (Misappropriation of Trade SecretsUtah Code Ann. §13-24-1 et seq.)" includes:

161. Plaintiff is the owner of unique know how, concepts, ideas, methodologies, standards, specifications, programming, techniques, UNIX Software Code, object code, architecture, design and schematics that allow UNIX to operate with unmatched extensibility, scalability, reliability and security (hereinafter defined as SCOs Trade Secrets). SCOs Trade Secrets provide SCO with an advantage over its competitors.

They also allude to copyrights in numerous locations throughout the complaint.

SCO = Fredo Corleone?

Posted Jun 18, 2003 22:12 UTC (Wed) by lseubert (guest, #4168) [Link]

At this point, SCO reminds me of Fredo Corleone. Can't you just see McBride or Sontag starring in a scene from The Godfather: Part II, frothing at the mouth as Fredo Corleone?

Fredo Corleone: "I'm your older brother, Linus, and I was stepped over!"

Linus Torvalds: "That's the way Pop wanted it."

Fredo Corleone: "It ain't the way I wanted it! I can handle things! I'm smart! Not like everybody says... like dumb... I'm smart and I want respect!"

Poor Fredo. We all know what happened to Fredo.

SCO's pattern of behavior

Posted Jun 18, 2003 22:14 UTC (Wed) by jre (guest, #2807) [Link] (1 responses)

Indeed, it is a frightening thing to contemplate. Even a court ruling in SCO's favor might craft its decision carefully, lest the conclusion become a reductio ad absurdum threatening the foundations of copyright law.
But the most interesting part of this development is not the goofiness of SCO's latest claims, but their part of a pattern.
Taking everything as a whole, SCO's principals are not behaving like litigants who expect to win their case.
Consider the following:

SCO's initial filing was by any measure a shoddy effort.
What appear to be material misrepresentations of fact might be the efforts of a good lawyer who thinks he can win some and get away with the rest.
But how can we explain the oddly colorful metaphors with bicycles and luxury cars, the silly, easily avoided errors such as referring to RMS as a professor, the misspelling of "Linux"?
It would seem that the complaint was hastily and carelessly put together.

SCO's officers discuss the case at the drop of a hat.
Maybe I am just following this one more closely, but I cannot recall a lawsuit involving people presumed to be intelligent, responsible and acting under the advice of their lawyers, who seemed so eager to give interviews and talk about ongoing litigation with anyone who asked. How many times have we seen Darl McBride's or Chris Sontag's names in the press in recent weeks? And isn't each interview more outrageous than the last? This is breathtakingly unprofessional, and is not good strategy for winning a lawsuit. It is great strategy for staying in the spotlight.

SCO has inflated its claims incrementally and at regular intervals.
If we look at the history of SCO's ever-increasing claims, we see a careful ratcheting. First SCOSource was created, with vague rumblings about finding some way to save SCO from extinction by milking its "IP". Then came the IBM suit, followed by indistinct threats against Linux distributors. Then the 1500 letters to current or potential Linux users, along with threats to sue Linus Torvalds, etc. Now the tripling of the requested damages to $3B, with statements to the effect that SCO thinks it controls every OS in existence. Every few days SCO's front men do or say something newsworthy, and every few weeks SCO ups the ante.

McBride and Sontag are not trying to maximize their odds of winning, because it doesn't matter if they win or lose.
What matters is staying in the public eye and pumping up the stock. And at this they have been wildly successful.

What if SCO loses its case, the stock collapses, the company goes bankrupt, and there is cheering in the streets?
The individuals and groups who orchestrated this circus will still have got theirs.
Anything that gets this case before a jury quicker, and minimizes the window of time for stock manipulation, is a good thing.
But justice will not be served with SCO's defeat as an organization. It is vital that the individuals organizing this travesty be investigated, tried and punished.

Needless to say, I'm not a lawyer. If I am all wet on any of the above, please correct me.

As I've said before...

Posted Jun 19, 2003 4:23 UTC (Thu) by flewellyn (subscriber, #5047) [Link]

"Ahh, the Enrony of it all."

SCO owns the World?

Posted Jun 19, 2003 9:49 UTC (Thu) by ronzone (guest, #10671) [Link]

Ugh, as much as SCO should burn in hell, blah blah, I think something thatvhappened 20+ years ago WRT UNIX may be coming back to bite us.

In thise days, especially at places like UniSoft (which did SUN's initial
port to the 68000 Multibus boards, inasmuch as SUN *hates* to admit this), UniSoft (a Berkely UNIX portinh house) had a zillion customers that all wanted source code, which, IIRM, was around $100,000.

Lomg story short, a much much cheaper way to get source code to customers was a legal "pretend" that the customer was actually a sub-contractor to UniSoft, and all its work was therefore legally UniSoft owned.

Of course, we at UniSoft spent much time assuring the customer that OF COURSE UNISOFT WOULD NEVER EVER DO THAT.

A lawyer back then even mention what could happen, specifically things like SCO situations.

There were about 400+ customes of UniSoft by the time it died, and I think about 60 cases of "subcontractor source licenses".

I worked on AIX a few years later, and I know IBM had its own master source code license, and hence should not have been affected.

In addition, this issue becaome a problem only with System Vm System II, and I believe the BSD 2.x and 4.x were allegedly "immune".

The moral is: AT&T was incredibky anal-retentive on nits UNIX source code, and every lawyer I worked with on this strseed all the SCO0like landmines in it and the great care that needed to be taken.

Of course, us tech-weenies had the attitude of :heck, that'll never bother us, let's go code come more ...".

Kind of makes me sick nowadays ...

SCO owns the World?

Posted Jun 20, 2003 12:22 UTC (Fri) by mgh (guest, #5696) [Link] (1 responses)

Sooo....

What is happening here? Imagine is Microsoft made an offer on SCO... their OS is implicated - so it would be a reasonable defense. Now what does IBM do then? Fight this with Microsoft? that _would_ be ironic if MS hired Boies too to continue the fight.

No one has to prove anything here, this is a drama played on the stage for a bidding war - so IBM offers SCO 250M then what? What does Microsoft do? Would any lawyer on the planet say to the CEO of any company, ah don't worry, your greatest competitor has a case against your product - its nothing? At the very least it will potentially divert a huge about of energy into the case.

I thought that there were powers the US govt had to public domain anything that is universally used in society? Maybe they shoud say "Yep everyone is infringing... Ok? Now - thats all in the Public Domain"

Otherwise the big US software companies are going to be spending a huge amount resource fighting a never ending story... not a good way to stay competitive.

SCO owns the World?

Posted Jun 25, 2003 3:20 UTC (Wed) by Peter (guest, #1127) [Link]

What is happening here? Imagine is Microsoft made an offer on SCO... their OS is implicated - so it would be a reasonable defense.

I'm sure they've thought of it. Just one problem. "Convicted monopolist OS vendor buys Unix, their only competitor" is very unlikely to fly. Even in the current American political scene. Right? Right?