Letters to the editor

Preventing future SCOs

SCO undoubtedly thinks that they're making a show of strength by suing
IBM, the proverbial 800LB gorilla. Do they play a more dangerous game
than they know? With their suit, and more significantly the constant
barrage of press releases and threats to sue, SCO has insulted the
Free Software community, threatened our job satisfaction and in some
cases our very livelihood. There seems little to be done besides
playing at dueling press releases. Although the potential loss to the
Free Software community may be the larger there is a forgotten group who
are more directly harmed the the we are, the people who are now
purchasing SCO stock.
 
Step back for a moment and reflect on why the SCO of some months ago
has taken this path. Their stock was trading for less than $1/share
and the company was plainly on the road to ruin. Regardless of the
merit of their suit, the major stockholders could only stand to
benefit. And, of course, the lawyers get paid no matter what. There
are, of course, losers too. The people who buy SCO stock on the basis
of SCO's as yet unsubstantiated legal claims, and the notion that SCO
is perpetuating that, should their claims be true, SCO can somehow
require all Linux users to purchase licenses from SCO. IANAL, but
something slimy is clearly going on here.
 
SCO has had some help by others who are threatened by Linux. The suit
has lead the Gartner Group, a company paid to produce research
reports, to recommend against Linux, which has no owner interested in
paying for research reports.
(http://www3.gartner.com/DisplayDocument?doc_cd=116445) Interestingly,
there was no recommendation that AIX be avoided even though in
conjunction with the suit SCO has already suspended AIX's Unix related
licenses. Likewise, SCO has also received help from other businesses
threatened by Linux; when it started the suit it knew there are
powerful business interests which would help spread mis-information
and inflate SCO's stock value. There will always be groups interested
in disparaging Linux and Free Software.
 
SCO stock is now trading for more than 10 times it's former value.
Again, IANAL, but if it can be shown that the members of SCO's board
of directors are benefiting from this, and if it can be shown that the
board initiated all this activity knowing that it would inflate the
price of the stock beyond it's underlying value, I imagine that
there's a class action lawsuit that could be brought. There certainly
seems to be knowledgeable lawyers with grave doubts of the merits of
SCO's case. (See
http://www.osdl.org/docs/osdl_eben_moglen_position_paper.pdf and
others.) The scam may be even more complicated, for example see
http://www.computerworld.com/softwaretopics/os/linux/story/0,10801,83452,00.html?SKC=linux-83452
but my underlying argument remains sound.
 
The only way to prevent this sort of underhanded activity in the
future is to make sure that those who initiate it don't profit. I
suppose the lawyers will always get paid, but who knows, there might
be a way to penalize their involvement as well.
 
Anyone who would like to prevent future suits like SCO's, and related
flimflamery, can help by preparing to sue the individuals responsible
(SCO's board?) when SCO's scheme, and it's stock, finally crashes to
earth. Regardless of what happens to the companies involved, if there
are people making money off practices like SCO's similar actions will
re-occur. It's time we put a stop to these practices before they
become common. The price of admission is low, the purchase of a
single share of SCO stock. If everyone contributes an amount equal to
the price of one share to a legal fund there should be enough money to
get started. Perhaps some lawyer who wishes to make a name for
himself can be found to work for cheap. No doubt there is some
question as to whether you can sue if you purchased your SCO share
knowing it's worthless. But there are many out there who _have_ been
taken in and by starting now we give them a better chance of
recovering something. In any case, ensuring that the perpetrators
don't profit from their schemes would serve the common good.
 
Me, I'm avoiding lawyers. By writing this note I hope to have
done my part, although I'd be willing to participate as a member of a
class action lawsuit. I leave the implementation to someone with more
time and knowledge than myself.
 
Regards,
 
Karl O. Pinc <kop@meme.com>
Free Software: "You don't pay back, you pay forward."
                  -- Robert A. Heinlein

Comments (1 posted)

Hard questions I bet SCO is unwilling to answer

Here are some questions I'd like to see SCO executives answer,
preferably under oath for a number of them. This is not intended to be
well-researched or completely accurate content backed up by references.
It is only a result of my brainstorming sessions while I vented my anger
at SCO's extortionist behavior. Feel free to use any ideas in this list
for your own articles or for ammunition in any court cases against SCO.
 
1. Has SCO investigated which individuals or companies contributed the
allegedly infringing SysV code to the Linux kernel? Aren't they the
only party who has willfully infringed on your copyrights?
 
2. Why has SCO chosen to publicly attack IBM and the Linux community
with their irresponsible campaign of hype and sensationalism by making
repeated verbal attacks and unsubstantiated claims in the news media?
Why have they not chosen to take a much more professional, mature and
responsible approach to the case like IBM has, with just a few short
press releases?
 
3. What reasons would SCO continue to run this ongoing campaign of
constant verbal attacks in the news media unless it was meant to
artificially inflate the price of your stock or to be as big an
annoyance to IBM as possible to essentially blackmail them into buying
SCO or settling to shut you up?
 
4. Why is SCO unwilling to publicly show even a small sample of perhaps
50-100 lines of code that you are absolutely certain originated in SysV
code that you own the copyright to and you are certain didn't come from
BSD?
 
5. Wouldn't SCO gain instant respect and credibility and silence their
critics who claim they are lying by showing a small piece of evidence
that conclusively proves your claims have merit?
 
6. Does SCO acknowledge that IBM is the sole copyright owner of the SMP,
NUMA, JFS, etc. code they have contributed to the Linux kernel?
 
7. When SCO claims the Linux kernel has hundreds of thousands of lines
and hundreds of files containing infringing code, are they referring to
the enterprise features that IBM and other companies have contributed or
to SysV code that SCO owns the copyright to?
 
8. What specific law(s) gives SCO the authority to go after companies
using (but not distributing) the Linux kernel who have accepted, in good
faith, that they were receiving legal code under the GPL from Red Hat,
SuSE, etc.?
 
9. Doesn't copyright law only govern copying and distribution of
copyrighted material and not use of that material?
 
10. Didn't Caldera/SCO themselves benefit over a period of years from
some of these allegedly misappropriated enterprise features as well as
the allegedly infringing SysV code by selling and making revenue from
their own Linux distribution with a kernel that contained this code?
 
11. Didn't a significant portion of the money that Caldera used to buy
old SCO, including their rights to UNIX, come from either selling
versions of the Linux kernel that contain both your SysV code and IBM's
allegedly misappropriated trade secrets or from IPO money from stock
investors capitalizing on an opportunity to support a Linux company that
was benefiting from these allegedly stolen technologies?
 
12. Under what license did SCO distribute the allegedly infringing code
inside the Linux kernel to their own Linux customers over the last
couple years?
 
13. If the kernel you have distributed to your own Linux customers was
not entirely under the GPL, have you notified them that their license is
null and void and they do not have the redistribution rights given to
them under the GPL?
 
14. Why has SCO not made any accusations against Linux distribution
companies like Red Hat or SuSE, who would appear to be infringing on
your copyrights by distributing and profiting from your code and causing
injury to you?
 
15. Don't you think there is a significant risk of losing your
copyrights by allowing Linux distributors to infringe on your rights
with your full knowledge for a significant period of time?
 
16. Isn't SCO in a privileged and unique position as the owners of the
UNIX source code as well as a Linux distributor? Wasn't SCO grossly
negligent for not conducting an audit of the Linux source code long,
long ago so that they were aware of what they were distributing?
 
17. Doesn't SCO forfeit any copyright claims because of both their
failure to protect their rights by conducting audits of what they
themselves have been distributing and benefiting from for the last 2
years? You had full access to all the code and plenty of time. And
you've demonstrated that you're capable of voluntarily auditing the code
since you claim to have done that last December. What excuse for your
failure to do the audit sooner do you expect people to believe except
negligence?
 
18. Isn't it true that SCO had developers employed by them who were
contributing code to the Linux kernel, including code related to the
enterprise features that you allege IBM has misappropriated?
 
19. Is SCO willing to submit to an audit to ensure there is no code
licensed under the GPL contained in SCO's Linux Kernel Personality code?
 
20. Why did SCO continue to distribute their own version of Linux for 5
months after they became aware of the allegedly infringing code in
Linux? Wouldn't you consider that to be fraudulent and deceptive
behavior to misrepresent that the kernel you were distributing was being
licensed to your customers under the GPL when you were fully aware that
that kernel couldn't legally be distributed under the GPL and you were
unwilling to grant the rights required by the GPL to your customers?
 
21. Has SCO researched the true origin of all the SysV code they allege
is inside Linux to make sure it isn't covered by the BSD settlement and
the code didn't originate in some common, free place such as an
algorithm book or the public domain?
 
22. Considering that IBM, HP, Sun and other companies have access to the
UNIX source code, they can also do their own audit and discover any code
that is shared between Unix and Linux. Don't you think that these
companies who have contributed to--and make money from--Linux would be
busy removing or rewriting any non-BSD or public domain code that they
had found that they believe is truly a violation of your copyrights?
 
23. Aren't you concerned about being held accountable to your
shareholders since you've shut down your Linux business, failed to
invest in and improve on the Unix code and completely alienated your
company and possibly made yourself one of the most hated companies in
IT?
 
24. Do you really believe you can hold the Linux kernel hostage by
leaving your code inside it and refusing to document the allegedly
infringing code so that it can be removed and people can cease the
infringement? How is compelling people to pay for that which they don't
want not blatant extortion? How is preventing companies from legally
distributing the kernel because it contains non-GPL not restraint of
trade?
 
25. Wouldn't the most honorable and decent way to approach this dispute
be to: a) Document the allegedly infringing files and lines of code.
b) Prove that the code didn't originate from a legal source such as BSD
or public domain. c) Demand that and infringing code be removed and
replaced. d) Ask the companies who unknowingly distributed the code
like Red Hat and SuSE to pay a small amount of actual damages. e)
Investigate which individual or company copied the code illegally and
donated it to the Linux kernel and sue them.
 
26. How does SCO intend to make money, stay in business and avoid
bankruptcy for the next several years until the trial is over, including
the long process of multiple appeals that is almost inevitable if IBM
loses?
 
27. Why would anyone buy any products or services from SCO now that
they've alienated themselves and made themselves nearly universally
hated by so many people who support IBM and the Linux community?
Wouldn't the only people who would buy anything from you now likely have
a hidden agenda that includes indirectly supporting an attack by SCO on
IBM and Linux (i.e. Microsoft and Sun)?
 
28. If there are indeed hundreds of thousands of lines and entire files
containing SCO copyrighted code, including line-by-line copying with
typos in comments intact, that infringe, how could SCO have gone all
these years and not detected this code in the Linux kernel that they
themselves were distributing since the 2.4 kernel was released? What
excuse could you possible expect people to believe except gross
negligence or incompetence to explain this failure to protect your
copyrighted code?
 
29. Isn't it true that you continue to distribute Linux kernel binaries
and/or source on your FTP site which contains non-GPL code that is in
violation of copyright law and is harming the copyright owners of the
kernel source?
 
30. Isn't it true that SCO cannot sue for damages for any past
infringement since they weren't the registered copyright owners of the
Unix code? And isn't it true that SCO has an obligation to mitigate
damages so they cannot sue for any infringement that occurs after they
were aware of it?
 
31. Isn't it true that you can only sue for actual damages, and not
punitive or statutory damages or legal fees, for copyright infringement
by anyone who does not knowingly infringe, which makes it very difficult
to recover more damages than your own legal fees? Doesn't that
virtually eliminate any ability to sue end users of Linux because you
stand to lose more in attorney fees than you might possibly gain in
damages awarded?
 
32. Is SCO at all concerned about being sued for: 1. Damaging the
reputation of IBM and AIX by publicly claiming to revoke a contract that
may be ruled by a court to be irrevocable. 2. Violating copyright law
by distributing a kernel for months that you believed contained SCO code
that you do not agree to license under the required GNU Public License.
3. Committing trade libel and restraint of trade, thereby damaging the
business of Linux distributors like Red Hat or SuSE by making
unsubstantiated claims in the media 4. Possibly putting GPL code into
SCO's Linux Kernel Personality code in violation of copyright law 5.
Possibly infringing on any number of the patents in IBM's large patent
portfolio 6. Possibly artificially manipulating SCO's stock price in a
pump and dump scheme that the SEC won't look kindly on 7. SCO
potentially going out of business because they have alienated themselves
from most of the IT industry by attacking IBM and the Linux community,
and voluntarily shut down their Linux business thereby eliminating that
revenue, which may result in a shareholder lawsuit because the stock
owners will end up losing their money because of your irresponsible
actions
 
33. Why does SCO keep changing their story in the media? First you
claim you're not going to sue anyone distributing or using Linux, later
you threaten to. First you say you may sue Linus Torvalds, then you say
you won't. First you say there's no infringing code in the Linux
kernel, just on the periphery, then you claim there's code inside the
kernel. First you claim you have no evidence of IBM directly copying
SCO's code into the kernel, then you say you do. First you refer to the
code that IBM contributed to the kernel as "your" code then you admit
that IBM is the copyright owner of that code. First you say Red Hat and
SuSE will have their day of reckoning before this is over, then you
appear to be only going after end users of Linux. First you call older
versions of Linux a "bicycle" in the IBM lawsuit and then you remove the
statement. First you say you'll audit AIX customers, then we hear
nothing but silence (perhaps you realized that by "revoking" IBM's
contract, in the process you have also revoked any rights you claimed to
have to audit their customers that the contract might have given you).
First you hire David Boies to be your chief legal counsel and then you
quietly replace him with a SCO employee.
 
34. Doesn't it seem odd that whoever is responsible for putting the
allegedly infringing code into the Linux kernel didn't seem to have made
a serious effort to make significant changes to the code
in order to obfuscate it sufficiently enough so they it would be
difficult or impossible to detect? Why would they paste in the code
exactly, including comment typos, which would make it trivially easy to
detect? This would be equivalent to committing a crime and leaving
fingerprints or other obvious incriminating evidence at the crime scene
that would lead the police straight to you and result in an easy
conviction. Unless it was SCO employees who donated the code, or it was
done intentionally by someone with a malicious intent to contaminate the
kernel and hurt the businesses and companies who use it.
 
35. Is it possible that Caldera bought SCO and their rights to the Unix
code for the same reason that they seemingly bought DR-DOS? Someone saw
an opportunity to buy a company cheap and inherit the ability to file a
lawsuit against a large company and collect a ton of money? Perhaps the
Canopy group saw the lawsuit potential as the primary or even sole
motivation for buying DR-DOS and Unix?
 
36. Your lawsuit claims you deserve multiple billions of dollars in
damages, but how many decades or centuries would it have taken your
company to make that much in profit or even gross revenue had you not
been allegedly injured by IBM (assuming you would have stayed in
business)?
 
37. Shouldn't SCO be concerned about their very dubious and bizarre
interpretation of laws that almost every other attorney would disagree
with? Such as claiming IBM code that has no SCO owned code in it is a
derivative when it clearly doesn't meet the definition? Or declaring
that licensing the code inside the Linux kernel that you claim you own
with a Unixware license is somehow not sublicensing, a violation of the
GPL? Or that end users who aren't copying or distributing are liable
for copyright infringement, but Linux distributors who are clearly
distributing and making money by selling your allegedly infringing code
aren't violating copyright law?
 
38. Isn't it hypocritical and a double standard to claim that you
shouldn't be held accountable for both unknowningly and later knowingly
distributing your own version of Linux with a GPL-licensed kernel that
contains both IBM's enterprise code and your SysV code, but you claim
that end users owe you money even though who unknowingly received a
kernel in good faith that contains this allegedly infringing code from a
Linux company who also had no way of knowing it contained illegal code?
Why shouldn't you be held accountable for not knowing what you were
doing, but people who use Linux should?
 
39. What is the real reason SCO is suing IBM? It's not really because
you honestly believe IBM donating the source code for a few enterprise
features that almost no Linux users utilize killed Unixware, right? Is
it because of IBM abandoning Project Monterey or is it for revenge
because you tried to get IBM to pay for some licenses that they didn't
think they needed and they decided to stop doing business with you?
 
40. Doesn't there seem to be a pattern of incompetence in the way
Caldera and SCO have been run? First, you don't register the Unix
copyrights after they were transferred years ago. Then you don't audit
the Linux kernel source code to see if there's any unauthorized code in
the kernel you're distributing. Then you continue to distribute your
own version of Linux with the kernel under the GPL for months after you
actually did audit the code and claim to have found infringing code.
And you continue to distribute Linux kernel source under the GPL on your
FTP site to this day. And you keep changing your story as described
above.
 
41. Do you really believe the claim in your lawsuit that IBM's donated
code is responsible for killing Unixware? Don't you think that the 2.2
Linux kernel, which you've said doesn't contain misappropriated or
infringing code, is fully capable of destroying the market for
Unixware? Don't the vast majority of people who use Linux as well as
Unixware utilize it on small 1- or 2-CPU servers or in embedded devices,
which don't require the misappropriated or infringing code to operate?
 
42. Are you at all concerned that AT&T might testify on IBM's behalf and
state that they intended for IBM to have the right to distribute code
they contribute to their version of Unix, regardless of any ambiguity in
all the side letters to the original contract? Wouldn't that severely
cripple your case?
 

Comments (6 posted)