Let's Put SCO Behind Bars

Can we not wait until SCO's fallacies are exposed during its own lawsuit, then there'll be more meat to base our counter-claims on?

For one thing, it would save IBM and Red Hat both a lot of money if we helped out now.

It's best to get something going as soon as possible. Partially because SCO is doing a lot of damage their press releases, no matter how insubstantial their claims. It's important to have counters to that start to appear. This kind of thing is an excellent way to make that happen. It dovetails well with RedHat's suit.

The damage to Linux is being done now, and the longer it goes on, the more damage is being done. MS handed over ~$10M to fund this attack. SCO's charter provides that it will pay the legal expenses of all the executives. Let's make SCO spend MS's money defending its own executives against criminal charges, instead of spending it on attacking Linux. Let's make SCO explain to reporters why their executives are on trial.

Besides illegal trade practices, they can be indicted for securities fraud, on the basis of their "pump-and-dump" game, and maybe for barratry, which is threatening to sue without legal foundation or standing, and for extortion. The accusation should be filed against the individual officers, not the corporation; criminal activity "pierces the corporate veil", leaving the principals and the board members personally responsible for criminal acts done under the name of the corporation.

There are many rumors as to why SCO is trying to pull this ruse on the industry, some plausible, some faux. Here's a brief synopsis of some of them:

Stock Play

According to this NASDAQ chart, they have had 10 out of their 13 shareholders performing "insider trades" in the last 3 months. Is this a coincidence? Or conspiracy? SCO has another earnings call on August 14th. I urge everyone who can dial into the conference number to do so. There's a lot more to this than meets-the-eye. They gave their own management team shares valued at something like $0.0001 and then sold them at the current market price, making a killing.

Microsoft Play

While it is true that Microsoft is funding their legal defense, one has to ask, why? What does Microsoft want with SCO? The answer: Nothing. If SCO takes a big bite out of Linux and IBM, both in the media and in the business sector, and then implodes themselves, causing "customer" damage to both communities (the Linux community and IBM's customers), who benefits? Who is left when SCO, Linux, and IBM all implode? Microsoft and Sun. How interesting. And if Microsoft does it through the simple writing of a check, they don't muddy their shoes.

Business confidence in Linux is waning, because of the threat of legal action against the Linux community for "piracy", or for "stelaing code". Managers who aren't familiar with the Free Software development model will assume that Linux got as far and as fast as it did (divers hardware support, application stability, etc.) through "theft", and they'll go use a different solution instead. This hurts the adoption of Linux overall.

You have to wonder why SCO chose to have a federal legal team, headed up by David Boies, the same federal attorney who was involved in the Microsoft Antitrust case, the Napster case, and the Bush election recount issues.. SCO clearly knew, and wanted this to get right up to the top, into federal courts. Since IBM can hold their breath longer than any company, this could take years, even a decade or more, to litigate. In this time, who takes the hit? IBM, IBM's customers, and the Linux community.

Intellectual Property Play

As Eben Moglen (the FSF's General Counsul) has previously stated, holding a piece of property that may contain someone else's IP, is not a copyright infringement. It becomes a copyright infringement when that property is redistributed, sold, or modified, without consent of the copyright holder.

Also, NO Linux users or companies are liable because the license which was transferred to them (the GPL) did not contain any "exclusions" containing mention of any IP or other company property in it.

"If you buy a car from an auto dealer, and you find out that the car sold to you was a stolen car, are you liable for the theft?"

No.

Additionally, the baseless claim that SCO owns any work that IBM itself produces in-house, is ludicrous. IBM purchases a license to use the SystemV source tree in their AIX product. They expand the capabilities of SysV to include NUMA, or SMP, or RCU. That new creation (which was not part of the SysV source which was transferred to IBM during the purchase of the license), belongs to IBM, not SCO. It is a copyrighted work of IBM, not SCO. SCO cannot claim any ownership of something they did not create.

"If your photograph appears in a magazine, does the magazine now own the copyrights to your photographs?"

No.

Also, SCO has been distributing the Linux kernel, including sources, with the GPL license itself included, since 2001, and still continues to distribute it even today. SCO noticed the alleged "IP violations" back in 2001, and did nothing about them then. They still continued to distribute the Linux source they themselves claimed was infringing.

As Eben himself so poignantly stated:

"SCO cannot argue that people who received a copyrighted work from SCO, with a license allowing them to copy, modify and redistribute, are not permitted to copy, modify and distribute.."

The Golden Parachute Play

SCO is a dead company. They know it. UnixWare is not innovating. UnixWare can't compete with Linux, and certainly not without copying OUR code into THEIR codebase. Linux has surpassed them, with the help of many thousands of community contributors, as well as many big commercial companies like HP, Dell, and yes, even IBM.

SCO feels they were "shorted" by these customers, and they want a piece of the Linux "pie". They'll go and attack Linux, claiming that Linux contains their source code, and hope that one of these larger companies buys them out to shut them up. This is a double-edged sword, however, and I'm glad that IBM and other companies have seen through it. If IBM buys SCO, in the eyes of the media and the community, it will appear that IBM was "wrong", and bought SCO to shut them up. Nobody will trust the code that IBM contributes from that point forward. Additionally, the senior management team at SCO gets rich on the buyout, as well as their numerous illegal insider trades, and they float happily to the ground in their golden parachutes with their insider trades filling their pockets.

The GPL is not a EULA, it is a way to further strengthen what already exists, copyright. Once the GPL is violated, your rights to use it are removed, and every single violation after that is now a copyright violation, not a GPL violation. This means you can now use the US Legal Court System to enforce your copyright claims. Every author who has copyrighted code in Linux (hundreds, maybe thousands of us) can start looking through to find places where SCO has redistributed our code against our license, the GPL.

There is no spoon..

SCO has repeatedly claimed that there are "hundreds of thousands of lines" of infringing code that they believe belongs to them. They have yet to show this code, except for a few small "dubious" snippets here and there under a very heavy NDA agreement. This is not "opening up the code" as they have stated they will do. What should we do? If we don't know where the code is, how do we begin to investigate it ourselves? Maybe there is infringing code in Linux, but where?

Simple, the Thomas Edison approach. Look through the entire codebase, and find out where the code is clearly NOT infringing, and remove that. What you will have left, is code that is unknown in origin, or potentially infringing. Consult the maintainers/submitters of that code, and have them rewrite it. Typically in cases where copyright infringement is an issue, the accused is given a chance to remove the coprighted work, and replace it with another. In this case, SCO is not allowing anyone to do this, and in fact, since they've alleged that they knew since 2001 that "their" code was in our Linux source tree, they neglected to notify anyone of this. You can't just see a copyright violation, and wait a few years to allow it to propagate, THEN persue litigation. That's not how the law work here.

The end result is that this is nothing but a ruse, a joke, and a method for SCO to try to take one last bite out of Linux, before they implode, and everyone at SCO gets rich in the meantime. There is also the backstage puppeteer here pulling the (purse)strings, Microsoft. You have to wonder what they have to gain from this.. oh wait, no you don't.

One thing I wanted to also mention, is that SCO is claiming that Linux users using Linux on embedded devices must also pay a licensing fee, and that they "own" Linux (which they do not, never will, and can't even try to claim such ludicrousy)..

What I want to know is, how can they claim their IP is only around SMP, NUMA, RCU, and then claim that embedded Linux devices are somehow required to fall under the SCO licensing scheme? When was the last time you saw an embedded Linux router with NUMA? A Linux-PDA with SMP?

By my count thus far for machines I personally own and run here, I would currently owe them $8,388.00, and $16,788.00 by the 15th. I would absolutely love them to stop on by to try to collect this "license" fee.

I believe we need courageous individuals now refusing SCO's fraud. Though he will need to be represented by an articulate lawyer who specializes in IP. Are not there such persons in US? Cannot Lessig or another known figure help with such a case?

I also suspect it is Microsoft behind acts of SCO. If that is so, we should prove that and send Microsoft to court as well.

The outcome is clear I think. This is just the beginning.

Yeah. I installed linux kernels myself on the beowulf cluster here. 33 of them makes a lot of licensing fees, right? Let them try to take $23067 from me.

I invite them to come and sue me in my country. I will show them the finger at court. Bozos.

The best treatment we should give them is tar and feathers. I wouldn't mention what they really deserve. I have never seen an international SCAM like this. They should be severely punished. We shouldn't allow them to get away with it.

What i noticed is that SCO demands trial by jury on all issues so triable. This is a fairly complicated case on the ownership to collective Intellectual Property. How the court is going to consider who qualifies to be on the jury? For an average Joe Ma Ma who never care too much about creating a piece of intellectual property to be sold, resold, give for free to one or any or all interested markets, parties, will this Joe Ma Ma unquestionably suited to be sitting among the jury to cast his vote, like if he does what he believes is right, what he believes is going to prevail? Not a chance!

ps. to post a bonus from David Letterman's show last night. "Bush went on a vacation. He went fishing. He didn't caught any but he believes there is fish out there..."

Not sure exactly what the deal is with SCO demanding they be paid, but there is a law covering this area about buying or downloading stolen code.

Also, the saying Caveat Emptor might apply here where a user should do some homework first or have a knowledge of the item before using it.

It is definitely interesting how it will pan out and I'm all for seeing SCO lose the case whether it be civil or criminal.

I don't know if what they are doing is illegal, but it's certainly evil. I wrote my congressman, Peter Defazio, to let him know what I think both as a 'small businessman' (independant consultant), and as a taxpayer who would foot the bill if SCO were to have its way with government users of Linux. I'll probably send off a few more letters...

I found that this:

http://www.opensource.org/sco-vs-ibm.html

is a pretty good resource - it looks fairly accessible to non technical people.

A somewhat improved version of this article is now featured on the front page at Kuro5hin. Here's the full text of the article.

If you do plan to copy this article, either to your own website or to publish at other sites that feature articles, it would be best to take the draft that I will maintain on my own website, as it will be the most up-to-date. I expect to make small improvements over time, for example to go into more detail about the "pump-and-dump" insider trading SCO's executives have engaged in. I'm pretty happy with the draft at Kuro5hin, however the markup inserted by Scoop is kind of ugly and wouldn't work well at most other sites. Use this version for your copies:

• http://www.goingware.com/notes/prosecute-sco.html

Thanks everyone for your help.

Well... unless you sign a bit of paper that says the magazine _does_ own the rights. Which AFAICT is more akin to what SCO is claiming. (Though the whole derivative works thing is just stupid and ridiculous IMHO :-).

i find this essay shines some light on the case...

Actually the quote was "hundreds of lines". Everyone laughed at them, and so the updated quote is "hundreds of files."

......grow a freaking brain, dude. You whine more than anyone on this site, about your "poor little me, I'm depressed". I laugh everytime I think about you offering me "advice" on how to program. You don't have a clue how to program, your website is nothing more than a "avoid consultants because I am the consultant you should hire" crap.

Bytesplit,

Your rant is off-topic here. But before you claim I can't program, have a look at my resume. I've been working as a professional developer for fifteen years, programming regularly for twenty-three years, and wrote my first program in 1976.

Don't miss the list of products I have shipped. It's actually not up-to-date; I have a number of products from the last couple of years I need to add to it.

I don't try to tell anyone they should avoid consultants because I'm the one they should hire. If I did, why would I have written a page like Market Yourself - Tips for High Tech Consultants several years ago, or How to Promote Your Business on the Internet more recently? Why would I provide a page which gives links to many of my direct competitors?.

As for claiming that I'm whining about being depressed, have you actually read Living with Schizoaffective Disorder? Do I ask for your sympathy in the article? Yes, I wrote the article to fight the sort of stigma you display in your post, but asking people not to hate the mentally ill is quite different from asking for sympathy.

I'd like you to spend a moment contemplating who among us really needs to "grow a freaking brain".

Notwithstanding the crazy gratuitous insult near the end of the comments here, I liked the article.

I personally think that the wider freedom oriented community should start to maintain a list of the individual people involved in threatening the commons. These people should be denied access to the commons, simple as that. As time goes on and services provided as a result of the commons increases people will start to think twice before they threaten the community. Hope the RIAA is paying attention too.

Sure, kill the entities, but let's make sure the people involved don't get a second chance to fire a shot.

Aside: Went to bytesplit's profile to certify, but could not find 'Troll' in the dropdown list. Is this a bug in Advogato?