How do you spell Lawsuit?

Lance Nichols · 11-19-2003, 01:12 PM

According to Darl McBride... SCO is how it is spelled

For those not in the loop, Darl is the CEO of SCO, a company that seems determined to go down in the annuls of computer history as having launched the stupidest lawsuits and threats of lawsuits ever. SCO is suing IBM for IP infringement over code included in the open source OS Linux.

SCO refuses to indicate what code is being infringed, essentially demanding that IBM, and others targeted in the suits have to find it themselves. What code has been revealed was quickly shot down as having being eliminated from LINUX quite some time back, either because questions about the IP validity, or because the code was obsolete.

The general consensus in the community at large is SCO has NO legs to stand on. So what does SCO do? Well according to this NEWSFORGE article they intend to broaden the lawsuits, going after other open source *nix operating systems by attacking the AT&T/Berkley settlement of nearly a decade ago.

For those unfamiliar with the history of the various *nix flavors, most of the tools developed for modern computing, and Internet usage were developed on one, or more, of these open source OS. SCO is hoping to take down the very basics of modern computing's origins.

John Watson · 11-20-2003, 08:03 AM

I'm expecting someone to try to patent the alphabet soon, and charge us per word for speaking, writing ..

On a previous unrelelatd thread, I created the word Suitaphobia for "fear of lawyers"

Lance Nichols · 11-20-2003, 03:30 PM

I really don't understand the reasoning behind all this. Near as I can think of it, is Darl is working to get the GPL ruled on in a Court of Law. If the rulings are unfavorable, this opens a whole can of worms. Invalidating thousands, if not millions of licensing agreements that have been worked out over the last 10 years or so.

Even worse would be the possible invalidation of the *BSD style license agreements, often thought to be much more restrictive the then GLP for freely distributing code, but more "commercial software friendly" then the GPL.

Invalidation of either, or both these licenses would essentially make only "for profit", restrictive licenses the only remaining option for developers. This would in essence force the re invention of the wheel each and every time someone whats to code a title to do X, Y or Z, even if X, Y or Z was done before by other coders, trapping everyone in a sea of interoperability. Granted that is worse case scenario, and unlikely, as (IIRC) the *BSD licenses have been tested in court. The big question mark is the GPL, as it has never been tested in court.

11-20-2003, 08:10 PM

For a really good laugh, take a look at the court filings, especially IBM's Memorandum in Support of its Motion to Compel Discovery. It appears that SCO is dragging its feet in the discovery phase of this court proceeding, and not providing IBM with even a single fact or line of code to back its allegations. Darl claims that SCO has provided over a million pages to IBM in the discovery process, but he fails to point out that none of it is responsive to any of IBM's questions.

More recently, SCO has filed documents with the court claiming that it has never accused IBM publicly, and yet Darl had this to say to VARBusiness:

Quote:

It's that they've [IBM] taken a substantial amount of our code is what creates the battleground. It's interesting to hear Red Hat speak at financial conference yesterday and their comment is, 'We're really scaling Linux up. Linux is really growing up.' If you take IBM out of the equation, Linux would not be growing up, it would not be SMP-enabled, it would not be multi processing, scaling up to hundreds of servers. It is IBM that is enabling that.

Although SCO's court filings assert that they haven't come up with the proper documents because IBM's document requests are “unduly burdensome,” Darl, in the same interview, reveals that he is actually stalling on purpose in order to increase the damages:

Quote:

We're sort of fine to let the AIX thing tick, because the longer it goes, when we actually end up in courtroom, we can go back to June 13, 2003, and add damages.

In cases of infringement, the victim (I'm referring to SCO, here) must take action to mitigate damages. If you plagiarize someone in a book you write, then the person you've plagiarized can take action to make you stop selling the book and sue for past damages. But he cannot under any circumstances compel you to continue publishing plagiarized material and pay him a perpetual royalty. Yet that's what Darl expects to be able to do with Linux. Instead of revealing the alleged stolen code so that damages can be halted, he insists on collecting a license for every Linux distribution sold, retroactively, and in perpetuity. Instead of mitigating damages, Darl seems intent on maximizing damages, which (IANAL) the law frowns upon. In fact, nobody could say it more clearly than Darl himself:

Quote:

Our belief is that SCO has great opportunity in the future to let Linux keep going, not to put it on its back but for us to get a transaction fee every time it's sold. That's really our goal.

If his lawyers haven't told him, they should: By law, he cannot compel the Linux community to continue using his allegedly stolen IP and demand a royalty in return. If stolen IP is in Linux, it is within the OSS community's rights to have it identified so they can remove it and be done with it forever.

SCO is being sued by Red Hat, a Linux distributor, for making threats against Linux customers, which is damaging to Red Hat's business. In court filings in that case, SCO claims that the 1500 letters it sent out warning of legal action against companies that use Linux were simply the basis of a “theoretical legal discussion.” Yet Darl again contradicts himself when he says:

Quote:

I would say we're suing end users. There are only two industries who use the term 'users,' computers and drugs. Not sure if there's a connection there. But the point is, we're not suing our customers. We are going after end users of Linux and I think there's a slight but significant difference there.

Also, in court filings in the Red Hat case, SCO claims that the Red Hat case should wait until the IBM case is over, since the results of the IBM case will essentially decide the outcome of the Red Hat case. (In other words, if SCO can prove in the IBM case that Linux is tainted, then the Red Hat case should be dropped, since their threats... er, theoretical discussions, will be vindicated. And if SCO loses the IBM case, then Red Hat will be entitled to its day in court. Yet, once again, SCO's public statements are at odds with its court filings on its own web site where it claims that even if it loses the IBM court case, it will still go after end users of Linux, since the IBM case is a contract dispute and has nothing to do with infringement. (Sorry, I'll try to find a link.)

But it's not all bad. Darl, though he appears to have adopted a litigation business model, indicates that he's actually excited about producing and selling a real product:

Quote:

The core business, we think that's bottomed out and there's upside now with new products coming. We haven't had a new product in our OpenServer base in years and years.

Funny, though, how, according to Darl, Linux would never be as good as it is if it hadn't stolen code from SCO's Unix, which hasn't been updated for “years and years.” Go figure.

Most recently, SCO has threatened to sue Novell using a contract Novell signed with Santa Cruz Operation, a company that still exists today and is currently known as Tarantella. (It's often referred to as “Old SCO” in order to differentiate it from the similarly-named SCO we're talking about.) It boggles the mind that SCO would actually try to pass itself off to the media that it, and not Old SCO (Tarantella), is a party to that contract! If SCO (new SCO) tries to make good on this threat and sue Novell over a contract that it isn't even a party to, then I think sanctions are in order, not just for SCO, but for its lawyers as well.

See that? You got me started!

Journalists at first took SCO at its word, regurgitating its press releases as factual news items. But the web of lies is beginning to fall apart, and (finally!) some journalists are even examining the court filings to try to gain a better understanding of the situation. Those that do express shock and utter dismay at having been manipulated. (Duh!)

And now the GPL is unconstitutional? And everything released under it for the past three years should be declared to be in the Public Domain? Without consulting the copyright holders?

How could it possibly have gotten this far?

My theory is that SCO never intended their claims to see a day in court. I believe that from the very beginning, this was a bid to get IBM to buy them out just to shut them up. When IBM didn't bite, they upped the ante from $1 billion to $3 billion, hoping to scare IBM into a settlement rather than to litigate a $3 billion court case. When IBM still didn't bite, what could SCO do? Up the ante to $3 billion jillion gazillion? Even they knew that would look silly. IBM's heels were dug in, and yelling the threats more loudly wouldn't change that.

But something wonderful happened when they upped the ante to $3 billion. The price of SCO stock went up quite a bit. Since then, it's been a simple Pump-&-Dump stock manipulation scheme. Every day, SCO would come out with a more outrageous claim or a new threat against the OSS community, and each time the stock would go up. Surely, this was paradise!

But, aw, crap, they're running out of people to threaten (the world is only so big), and now they actually have to go through with the court case without a shred of evidence to back up their claims! Crap, crap, crap! Who could have possibly guessed that it would have come to this? Oh, why didn't IBM just buy out SCO when it had the chance? That was the original plan, after all. Oh, sure, it's nice to sell SCO stock at a surprising $20, when they were hoping for, at most, $2 from IBM's buyout offer. Yeah, it's nice to be stinkin' rich, but will it be worth pissing off two federal judges when it's all over?

I don't believe they have an end game to all of this. I think they're pretty much stuck, forced to conduct a lawsuit that was never intended to see the light of day, and forced to face their day of reckoning in the aftermath of these court cases.

When you practice to deceive...

Tony Whalen · 11-21-2003, 09:17 AM

Personally, I spell lawsuit like this:

H-O-T-C-O-F-F-E-E

**HTF Ads**

11-21-2003, 11:11 AM

Brian,

Thanks for your post above. I have been trying to wade through all the information related to this case and it's hard, for me at least, to tell the "smoke and mirrors" from the facts.

Appreciate your time and efforts.

11-21-2003, 07:12 PM

No problem, Colin. Since I've been following the story for a few months now, it wasn't that hard for me to slap the above post (including the “Crap, crap, crap!” part) together.

Another thing worth noting is that IBM asked SCO to identify each of the trade secrets and Unix code SCO thinks have been misappropriated, why SCO claims ownership of these trade secrets and code, and how they came into possession of these trade secrets or code (whether developed by them, or acquired by them, etc.). IANAL, but as far as I can tell, this is standard. When someone accuses you of stealing something, the accuser must identify the item that was stolen and offer some evidence that he actually owns it. The accusation must be specific enough to be investigable. He can't just make a general accusation and be granted court authority to go rummaging through your house looking for something – anything – that he thinks he can get away with claiming as his own.

In response to this request for specificity, SCO returned a list of 591 Linux source files that “may or may not” contain misappropriated code.

It may not be obvious, but this is not what IBM asked for. Linux source code is available for anyone to look at, and singling out 591 files of open-source Linux kernel code does nothing to identify misappropriated trade secrets or stolen Unix code. Unless SCO identifies SysV Unix code, it's not identifying anything that it can demonstrate it owns.

And it gets better. Never mind the fact that IBM is entitled to know exactly what it's accused of; SCO has been blasting IBM in public, claiming over one million lines of SysV Unix code have been copied directly into the Linux kernel. Furthermore, SCO has taken investors, analysts, and members of the media behind closed doors, and under protection of a Non-Disclosure Agreement (NDA) purportedly showed them examples of SysV Unix source code side-by-side with Linux kernel source code, proving to them that infringement has indeed taken place. (Not surprisingly, this has had an incredible positive effect on SCO's stock price.) Darl himself has proclaimed that SCO had hired teams of NASA rocket scientists and MIT mathematicians to perform “spectral analysis” to compare Linux kernel source code with SCO's SysV Unix code, and, according to SCO, the results indicate that Linux is almost a verbatim, line-for-line copy of Unix.

Yet, when it comes time in a court of law to put up or shut up, SCO won't have the courtesy to show any of this proof of infringement to IBM, the company who stands accused of misappropriating the Unix code.

So they didn't put up. And they haven't shut up, either. They've recently proclaimed that they're going to sue a prominent Linux user within 90 days, even though they have yet to publicly prove that they own even a shred of Linux.

Oh, but it gets even better. Much, much better.

Remember those 591 Linux files identified by SCO that “may or may not” contain misappropriated trade secrets? Well some geeks (I'm a geek, as if you all didn't know) have been taking a look at it and, well, laughing, mostly.

For example, consider the following, which is the entire contents of include/asm-arm/spinlock.h, one of the files on SCO's infringement list:

Quote:

#ifndef __ASM_SPINLOCK_H
#define __ASM_SPINLOCK_H

#error ARM architecture does not support SMP spin locks

#endif /* __ASM_SPINLOCK_H */

It's a simple, six-line source file. And it “may or may not” contain a SCO trade secret.

Now if you're a geek, you're probably laughing already. If you're not a geek, go find one, show him this code, and tell him that there's a trade secret in it worth three billion dollars. (Make sure you take away his Mountain Dew so he doesn't spew it all over your monitor.) See how hard he laughs? (It's okay, you can laugh, too, if you want. The geek will think you're laughing at the code.

)

In English, what this code does is produce a compiler error, issuing the message that “ARM architecture does not support SMP spin locks.” That's all. Why is this funny? Because, since this code produces a compiler error, there is no way it can be included in ANY working Linux kernel.

But, to be fair, this is the list of files that “may or may not” contain infringement. So what was it about this file that the NASA rocket scientists and MIT mathematicians thought was infringement? The answer is three simple letters: SMP SCO is claiming, if not ownership, then at least contractual control over several technologies: SMP, JFS, RCU, and NUMA. (Never mind what they are, just go with me on this.) So, on a hunch, a bunch of geeks used a program called grep to search the Linux kernel source code for any of these acronyms. It takes just a few seconds to execute. They got a list much larger than SCO's 591 Linux files. So they had to eliminate some. On another hunch, they modified their grep command to eliminate those files that mentioned “SCO” and “Caldera” (SCO's former company name), assuming that SCO wouldn't want to implicate itself in a court document.

Guess what? The grep command, when instructed to identify files with SMP, JFS, RCU, NUMA, and eliminate from that list those files that contain SCO or Caldera, produces the exact same list of 591 files that SCO produced for the court. (This was with one of the 2.5 releases of Linux. Othe releases had slightly different results.)

Exactly the same! And it takes less than a minute! And to think that SCO wasted all that time and money on NASA rocket scientists and MIT mathematicians performing all that high-tech “spectral analysis” in order to find misappropriated trade secrets, when they could have just used a simple grep command!

Yeah, sure. You can scroll back up and laugh at the code now that you understand it. If you've stuck with me this long, you're entitled.

Now I must volunteer that this in no way proves that SCO used a simple grep command to produce its list of “may or may not be” infringing Linux files. But that this list includes six-line header files that actually prevent any reference to alleged trade secrets, shows, I believe, that no human examination was performed on these files.

Not surprisingly, IBM has subpoenaed investors who have publicly claimed to have been shown proof of code infringement. As IBM's court document says (paraphrasing), “If SCO can show them, SCO can show us.”

Now before you go thinking that SCO doesn't have a case, there was a smaller list of Linux files that it produced, claiming that the files in that list definitely have misappropriated trade secrets and/or Unix code. No “may or may not” about it. Where did these files come from? Well, as it turns out, it's just a wholly-contained subset of the 591 “may or may not” files. What's different about them? They contain the strings “IBM” and “International Business Machines.” Many of the "IBM" references are copyright notices, but a surprisingly large number of the "IBM" references are comments by programmers who ridicule IBM for its hardware design. IBM had nothing to do with these files, except to inspre frustration in software engineers by providing a less-than-adequate interrupt architecture in the PC. Again, the absence of any human examination of the files is glaringly obvious.

How often is it that a company will litigate a three-billion-dollar lawsuit claiming code infringement, and not even look at the code it's submitting to the court as evidence?

Well, apparently, it's not “never.”

Lance Nichols · 11-24-2003, 02:47 PM

Holy! Brian, you had much more in this then I had. Hell, I didn't even know you could post comments that long!

Yeah, I suspect tghat Darl was hoping that IBM would just do the old "buy them to shut them up" routine. IBM knew better, and now SCO is looking at the end of the line, no matter what they do. Darl, and others are likely doing a bit of "if I am going to be damned I may as well really be damned."

I too have been following this from the start, and have gotten a mild chuckle - ok - out right laughed at some of the statements coming out of SCO. I really don't know what is happening in the back end of SCO, but they have not released new product in years. They expect to stop the rest of the world's march forward by hoping to have lawyers and bean counters side with them on the off chance that SCO might have a case. Basically they are blowing a lot of smoke, then mentioning big numbers and hoping that people will be scared with the big numbers, and not look past the smoke. IIRC, Darl has tried similar stunts in other companies as well.

I hope that the presiding judge throws this case out with extreme prejudice, and rules that SCO must open its code for all to see.