Once more on SCO

Once more on SCO

Summary: The resolution that's now so hotly anticipated by the groklaw mob seems like the worst possible outcome: no resolution on the key issue; the victory of money and media manipulation over right; and, lots of aggrieved parties left with axes to grind.

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TOPICS: Linux, IBM, Open Source
42

Every time I write about the SCO mess I get inundated with hate mail - lately including saddening stuff from people threatening to turn me into groklaw for anti-social thinking. Not, mind you, that this is limited to just the SCO stuff - anything that can be construed as opposed to right thinking can now lead to this kind of threat:

To: murph at winface.com
Subject: RE: I'd suggest Linux - but..a site redirection is NOT "geekiness" Paul
From: hygrocyb@bigpond.com.au
Date: Sat, 8 Dec 2007 23:27:21 -0800 (PST)

Dear Paul,

Without reading the rest of the article, to complain that a normal redirection is 'smug, arrogant, and geeky' is, quite candidly, a bit silly.......What else is a redirection site to do ? Set it up in lights with a message that Bill Gates also gives you his blessing if you bookmark it..I went to the site and got the redirection.....it seems a perfectly normal thing to do as far as I am concerned......So tell me: just what makes it: 'smug, arrogant, and geeky' ? I'd be very interested in why you find a perfectly innocuous request has those attributes.

Regards

Dr Tony Young

PS.....this email is being copied to Pamela Jones at Groklaw and I will also, with your permission, send her your reply as I am sure she will be equally fascinated to learn your reasons.

Reading stuff like this is a bit like watching people hurting themselves for comedic effect (viz: America's Funniest Videos or YouTube): you never really know how guilty to feel about your reactions to them. What's worst about this, however, is that the "groklaw effect" has become a significant component in the overall Linux "gestalt" - and just about everything most of that mob has been led to believe about the case is wrong.

The fundamentals of the case are simple: SCO (and I use the name generically) asked IBM to pay continuing royalties under its AT&T Unix licenses; IBM said words to the effect of "Nope, we have a fully paid perpetual license"; a discussion ensued during which SCO became convinced that IBM had breached the contracts by allowing people with intimate knowledge of the AT&T source to contribute to Linux; and so SCO issued the 90 day license suspension warning against AIX required under that contract.

At the time I expected that IBM's senior management would review the issue, recognize a problem, and settle expeditiously with SCO; but that didn't happen. Instead IBM circled the wagons and waited for SCO to do what it had to under the contract: escalate the conflict by formally suspending IBM's Unix licenses with respect to AIX and then ask a court to enforce that order against IBM.

That should have been a simple process: all SCO had to do was show the court that at least some IBM Linux contributors had significant prior or concurrent exposure to AIX source and it would have been game over for IBM. That didn't happen either: instead it appears that someone somewhere in the process saw the combination of IBM's intransigence and deep pockets with a rather obvious contractual dispute as a potential gold mine - and out of that we get the next act in which a major east coast firm, headed by the same lawyer who had been unable to prove that Microsoft benefited from an illegally obtained and enforced monopoly, gets a cost plus style contingency agreement to prosecute the case against IBM and we start to see inflammatory, and largely incorrect, claims issued in SCO's name.

Since much of what both sides said subsequently had little to do with the issue (and everything to do with valuing the settlement) I expected to see the consequent posturing roil along until the case got to court and then get swept away as irrelevant, but that hasn't happened yet. Instead, IBM pulled a wild card: lawyers working with the contracts under which Novell sold the AT&T Unix assets to SCO discovered that the section on Netware explicitly withholds copyrights for Novell's own use while the section on the Unix contracts, products, and sources transfers everything lock stock and barrel but doesn't explicitly mention copyrights - and out of that (I imagine coupled with the emotional freight delivered by east coast lawyers forced to travel to hicksville to drop pearls before rubes) we get Judge Kimbal's August ruling that Novell, the company which got SuSe with $50 million in IBM funding and whose own CEO and key negotiator at the time testified that they were indeed selling the copyrights, hadn't actually sold the copyrights.

Since Kimbal's decision to decide on disputed testimony probably constitutes reversable error, this nonsense won't stand for ten seconds if the case gets to the appeals court in Denver - but between paying its lawyers and the relentless attacks on SCO (and thus on its business) by people using groklaw, SCO may well be defeated financially before that happens.

To the simple minded partisans who send me hate mail on the subject this sounds good: SCO bad, SCO gone, ergo all good, right? Well, sorry guys - all wrong, and all bad.

First of all, if the underlying issues aren't settled they'll fester - weakening Linux by forever undermining the skills, hard work and honest enthusiasm that has gone into Linux. Secondly, if Kimbal's judgement is never appealed, thus leaving Novell in possession, Novell's directors will face some hard choices - a situation which whoever acts for SCO's other creditors (including some of Noorda's heirs) will be duty bound to exploit.

One of the worst things about this whole mess has been that the underlying issue has little or nothing to do with Linux and any reasonable settlement on either side would have left Linux untouched. Since then, of course, the lawsuit has triggered enormous marketplace FUD, the architectural 180 characterising the difference between the 2.4 and later kernels, and much of the us vs. them attitude underlying the "Linux is not Unix" nonsense.

As a result the resolution that's now so hotly anticipated by the groklaw mob seems like the worst possible outcome: no resolution on the key issue; the victory of money and media manipulation over right; and, lots of aggrieved parties with axes to grind, the money to hire lawyers to do the grinding, and a pot of gold at the end of the rainbow to spur them on.

Topics: Linux, IBM, Open Source

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42 comments
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  • Sorry Murphy...

    <b>.....I used to think you were credible.

    Today you opened my eyes:</b>
    "IBM pulled a wild card: lawyers working with the contracts under which Novell sold the AT&T Unix assets to SCO discovered that the section on Netware explicitly withholds copyrights for Novell?s own use while the section on the Unix contracts, products, and sources transfers everything lock stock and barrel but doesn?t explicitly mention copyrights - and out of that (I imagine coupled with the emotional freight delivered by east coast lawyers forced to travel to hicksville to drop pearls before rubes) we get Judge Kimbal?s August ruling that Novell, the company which got SuSe with $50 million in IBM funding and whose own CEO and key negotiator at the time testified that they were indeed selling the copyrights, hadn?t actually sold the copyrights. "<b>

    I have been following the SCO trial and Groklaw since 2003.

    What you write makes no sense.

    But of course, that could be because I'm a member of the "groklaw mob", right?

    Lame, man...
    thungurknifur
    • Yes - it probably is

      What you need to do is get more than one source of information.

      Don't mis-understand, I think groklaw demonstrates ideas about public information management that others will be copying - in fact, I'd recruit them on evoting if I could.
      murph_z
  • Just admit

    That you got it wrong Rudy. Trying to dress up SCO's real intentions with your verbal diarrhea does not change that.
    SCO made a stupid gamble and it's plain to see. Trying to make out that the way this case hase gone is the result of unfortunate circumstances for SCO is just silly.

    Just try to make an effort in 2008 not to look like more of an idiot, you too can have a new start in the new year.
    junknstuff@...
  • the law is nothing but codified

    codified public opinion and the public opinion is decisively against SCO - we want working x86 UNIX and neither one of ATT, SUN, Novell, SCO, IBM etc was either willing or capable to deliver such thing.

    If people in the know did share some "deep UNIX secret" in the process - we do not care much.
    ??oreover, it seems like there were no "deep UNIX secrets" in the ATT licensed code - there were plenty of books on the topic.
    zzz333
    • I think part of this is right

      In that a lot of the work on Linux during the late ninties consisted of re-inventing the wheel - the stuff SCO could have used to make the case pretty much all revolved around the Power port rather the x86 stuff anyway.

      However: almost all the "copying" stuff came in with the lawyers and is not properly part of the orginal issue; i.e. it's an effect, not a cause - a distinction on which another example tomorrow.
      murph_z
  • IBM and Novell contracts

    (a) the contract from Novell to the original Santa Cruz EXCLUDED copyrights; SCO Group had no standing to bring suit. The judge's ruling confirms this.
    (b) Before the lawsuits, IBM paid "perpetual royalties" up front. Then SCO Group comes and asks for more money; what do you *think* IBM was going to do?
    (c) Given the income IBM gets for running other peoples' datacenters, did you really think they'd pay SCO 'to go away' over a charge of intellectual-property theft? Their reputation in professional services would be ruined.

    SCO was going under, and decided to bring suit against a deep-pocketed company, expecting a payoff to shut up and go away. They picked the wrong firm and got their bluff called, and we've spent the last four years watching them try and dodge the bullet. The judge has called them for lack of evidence, has ruled the contract with Novell means what it says vs. what SCO would like it to, and now it's just a case of watching the corpse twitch in bankruptcy court before it gets buried good and deep.

    After twelve years at AT&T, a good chunk of it at The Labs, seeing these morons using the UNIX code I helped support as some sort of legal blackjack to stay afloat has seriously p'd me off. Seeing them finally sink will be quite gratifying.
    rkhalloran
    • Ok - so you're happy SCO got hurt, so what?

      Other than self-condemnation what's the message here? That you're so committed to hating SCO that you're prepared to buy the copyright separation argument?

      Take a good look at the contract. Yes, Copyrights are excluding - with respect to Netware, but everything gets transfered in the sections on Unix.

      Suppose I said: "You're brilliant" and then ten pages later said "except with respect to the sco case." Would you read that as saying that you're always wrong? No? then how can you defend the copyright exclusion in netware as applicable to Unix?
      murph_z
      • What about the addendum to the APA

        The one that explicitly states copyrights were excluded?

        Or what about the royalty payment arrangement to Novell? If SCOG owned Unix lock, stock and barrel, why would have to remit 100% of license payments to Novell, and have to wait for Novell to remit them a measly 5%?

        And this is info not from Groklaw forums, but from information made public record via various court filings.

        For you to still believe SCOG will prevail, you either have investments riding on the outcome, or you just suffer from cognitive dissonance.
        NetArch.
      • what contract are *you* reading?

        >>Take a good look at the contract. Yes, Copyrights are excluding - with respect to Netware, but everything gets transfered in the sections on Unix.

        The Asset Purchase Agreement specifically excludes all copyrights and patents; where are you reading this Netware-stays/Unix-goes stuff? Sch. 1.1(b), [b]Excluded Assets, section V: "A. All copyrights and trademarks, except for the [...] copyrights and trademarks owned by Novell as of the date of the Agreement required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies.... B. All Patents"[/b]; section VIII: "All rights, title and interest to the SVR's Royalties less than 5% fee for adminstrating the collecting thereof pursuant to Section 4.16 hereof."

        Santa Cruz never had the copyrights transferred, so Caldera couldn't have received them.

        All these papers are public documents, and the courts have said they mean what they say, not what SCO Group would like them to ("We 0wn0rz UNIX, IBM pay us BEELYUNS!"). IBM brought in the Novell lawyers that wrote up the deal, who still had their notes: (a) Santa Cruz didn't have the cash to buy out the copyrights and (b) Novell was afraid SC was likely to go toes-up, so they withheld the copyrights from the contract, and [b]that's[/b] what was signed. They *did* let them keep the 5% for collecting the SysV royalties. Caldera couldn't get from SC what they hadn't received from Novell, so WHERE'S THE STANDING?

        SCaldera doesn't have standing to sue, doesn't have the evidence if they *had* standing, and at this point doesn't have any more excuses as to why this case should continue. Now the case boils down to how much of their money *should* have gone to Novell per the 95% deal, and how much is left to pay off the people SCO has strung along expecting a big payoff from their open-and-shut case.
        rkhalloran
      • what I'm committed to...

        is seeing what proof SCO [b]ever[/b] had for their case; in four-plus years, after getting the entire AIX development tree to review, after the contract terms being reviewed in the IBM [b]AND[/b] Novell trials showed they had no right to start this, after the memos from their own people three months before it all started said they had nothing to claim infringement from, WHAT WERE THEY THINKING besides "IBM will pay us off"?
        rkhalloran
  • That isn't even wrong

    There are so many blatantly false historical fantasies in this that I'll have to deal with them separately.
    Yagotta B. Kidding
    • Primus: In the beginning

      [i]SCO ... asked IBM to pay continuing royalties under its AT&T Unix licenses; IBM said words to the effect of ?Nope, we have a fully paid perpetual license?;[/i]

      I wonder where this came from? There's nothing remotely like it on the record, including the initial correspondence between Caldera and IBM. It would be a bit odd, in any case, since IBM had explicitly paid future royalties in advance. Sort of like paying off an auto loan, then having the bank call up and ask for continuing payments forever.

      [i]a discussion ensued during which SCO became convinced that IBM had breached the contracts by allowing people with intimate knowledge of the AT&T source to contribute to Linux; and so SCO issued the 90 day license suspension warning against AIX required under that contract.[/i]

      Except that the contract (a matter of public record) includes no revocation process, much less "requiring" revocation.

      As the great Wolfgang Pauli put it, "that's not even wrong."
      Yagotta B. Kidding
    • Secundus: recognizing the problem

      [i]At the time I expected that IBM?s senior management would review the issue, recognize a problem, and settle expeditiously with SCO; but that didn?t happen.[/i]

      Of course, it's beyond belief that maybe -- just maybe -- IBM was acting scrupulously within its obligations?

      Note that in the face of two separate orders from the Utah Federal Court, SCOX never did identify any of the presumptive misbehavior you claim that they were aware of before the suit began.

      Again, not even wrong.
      Yagotta B. Kidding
    • Tertius: Discovery

      [i]That should have been a simple process: all SCO had to do was show the court that at least some IBM Linux contributors had significant prior or concurrent exposure to AIX source and it would have been game over for IBM.[/i]

      And after three years and tens of millions of dollars out of IBM's stockholders, with SCOX receiving the entire development history of AIX, programmers' notes, access to the development team, etc. they didn't find any.

      [i]That didn?t happen either[/i]

      Not for want of trying. SCOX pursued that line for three years and came up dry.

      Again, your fantasies have nothing to do with reality as shown in the court records.
      Yagotta B. Kidding
    • Quartus: Copyrights

      [i]Instead, IBM pulled a wild card:[/i]

      Actually, IBM never relied on that point and consistently argued that no matter who held the copyrights, Linux didn't infringe them. This position was borne out by SCOX' ultimate list of "allegedly misused materials," which didn't contain any potential copyright violations -- no matter who (if anyone) the copyrights might belong to.

      [i]lawyers working with the contracts under which Novell sold the AT&T Unix assets to SCO discovered that the section on Netware explicitly withholds copyrights for Novell?s own use while the section on the Unix contracts, products, and sources transfers everything lock stock and barrel but doesn?t explicitly mention copyrights[/i]

      Except that the APA [u]does[/u] mention copyrights: in the "excluded assets" section. Not transferred. Plain as day.

      Oh, and Novell pointed that out five years ago.

      [i]I imagine[/i]

      Yup -- that's where this whole tale is coming from, without the burden of any inconvenient taint of reality.
      Yagotta B. Kidding
      • Good!

        Thanks Yagotta.

        //Thungur
        thungurknifur
  • One thing's true

    This case really needed to go all the way to the end so there would be no room for doubt. Does Linux infringe any one's IP? Probably not (SCO never produced evidence), but if SCO withers and dies before exhausting reasonable avenues of appeal, the possibility, and perhaps probability, of someone else, maybe someone with a few more brains than SCO used, trying to prove infringement increases. That's not good for Linux.
    bert.knabe@...
  • RE: Once more on SCO

    "Every time I write about the SCO mess I get inundated with hate mail"


    Then maybe you should stop writing about them.
    mrOSX
    • Isn't that the point?

      of the hate mail?

      Look at the yagotta be kidding stuff above - From his other comments we know he's a very bright guy, and yet I think all of his certainties on this case are wrong. So why?

      My guess is that it's mainly because contrary voices have been shut up and he's getting essentially all of his information from one source - either directly or through self imposed censorship of the kind you're suggesting here.
      murph_z
      • If you do not want hate mail when you write about SCO....

        THEN DO NOT WRITE ABOUT SCO.
        mrOSX