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Q Cubed
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t3h y3ll0w p3ril
Apr 1999
time: 23:32
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oh, and ned, the reason why the open source people are up in arms isn't because of the sco-ibm contract dispute over aix/unix.
it's over the fact that sco keeps insisting that the whole open-source development community is "communist", "anti-copyright", and "anti-ip" hackers who couldn't code their way out of a cardboard box without stealing some good code from them.
the problem is, numerous folk have done code comparisons between linux and unix, and all of sco's claims seem to be based on no research.
this after sco claimed mit mathematicians proved that there were strong similarities of code; those mit mathematicians were never named, and have not stepped forward.
most of the open source world could care less as to whether ibm's aix and sco's unixware were troubled. sco might have in fact gotten much better press had it kept to that original focus. by starting to take potshots at linux and making unsubstantiated claims, sco has opened itself up to lawsuits from numerous places: redhat, for instance, suing because sco's comments strike at the very core of redhat's business; several big-name open source celebrities, like linus torvalds, could now conceivably sue sco for defamation.
furthermore, if sco really did have a good case, why does it keep shooting itself in the foot by being so difficult in the legal arena? deliberately irritating ibm's legal staff and engineering staff by sending over reams of paper on which code was printed: useless for comparison. or responding to ibm's motions for discovery with their own motions of discovery, saying that they won't know what ibm did wrong until they see ibm's code. or not even having their star lawyer, david boies, showing up at the first hearing?
what could sco possibly gain by these antics?
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Ned
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of Aptos, CA
Oct 1999
time: 21:32
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Urban Ranger, on the contrary, I believe that SCO has the equitable right to enforce the patents and copyrights even if it does not own them.
By analogy, assume UNIX was a piece of property upon which an apartment building was constructed and that Novell sold that property to SCO and retained only a right to use one apartment together with the right to obtain the rents from certain other apartments, including one occupied by IBM.
Now, if SCO did not own the building, how could it rent out further apartments? If it did not own the building how could it evict IBM if IBM began to become a nuisance?
Now what would you say about deed of sale that retained title to the property? What one would say is that the seller both sold the property and did not sell the property. The retention of title is highly inconsistent with selling the property. It's flat-out contradictory in fact.
However if it was the clear intent for the seller to sell the property to the buyer, the law will say that the seller holds the title to the property for the benefit of the buyer.
Under the circumstances of this particular case, SCO is the beneficial owner of the title to the UNIX property, which consists of the UNIX copyrights and patents.
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Q Cubed
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t3h y3ll0w p3ril
Apr 1999
time: 23:32
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quote:
Q-Cubed, the issue is not what appeared in SCO's products. Is is the extent to which the AIX that was contributed to Linux is UNIX V code, which dates from 1985 or before. I assume that that is the at least some of the more critical AIX code, if not all of it. However, that is still subject to proof.
I have not idea why SCO is making mistatements. |
and this is the crux of the problem. with the number of misstatements that sco is making, with the number of antics they are performing in the legal arena which are not winning them over friends in the judiciary, with the comments they are spewing in the public that are making them many offended people in the it industry--even those that actually buy and use unixware are being driven away (see the sec filings), and with the gross misrepresentations of the gpl (it's unconstitutional! it's communist!), the open source community (hack programmer-hackers who couldn't get a job, the lot of them) and their skills...
how credible do they seem?
and based off of their credibility, which because of their behavior most people think is rather weak, would you eb willing at this juncture, when they have not shown any proof, when everything they've shown has been quickly disproven...
would you still be willing to stop distributing linux when so many other companies outside the scope of this lawsuit, such as redhat, or suse, or lycoris, would you be willing to prohibit them from engaging in the only or core thing from which they gain all of their profits? would you be willing to force those companies to pay a sizeable portion to their earnings to a company in licensing fees which this company might not even own?
if your answer is yes, then, quite frankly, i'm absolutely befuddled in how you see the free market and the legal system working.
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shawnmmcc
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Q Cubed, your point about the programmer moving between companies is valid, but the case in the real world is even more confused. As I mentioned earlier, the influence of a professor (that actually teaches) at a major university can make it even worse. The programming techniques he teaches often result in a "fingerprints", techniques of coding and solving problems that clearly identify people from the program. That is why when Phoenix duplicated the IBM PC Bios, they not only used a "clean room" technique - every line of code, every statement, every memo was preserved, they hired fresh graduates from colleges that had absolutely now association with IBM, nor were favored by IBM for new hires. They beat IBM in court when IBM tried to shut them down.
Ned, this is why the SCO situation is such a mess, and highly suspect. From what I understand (cursory reading, not the excellent research shown here) linux has pretty much kept track of who contributed what. The problem is that in some cases of the takeover/merger/consolidation mania of the software industry, the paper trail is less than clear. SCO's refusal to supply the programming history makes their claims suspect, at best. Add into that openly defying the judge, even MS has gotten into trouble with that (follow their history of defying court orders regarding abuse of "temporary" hiring laws and their own company policies). Judges have absolutely no sense of humor when it comes to "contempt of court".
I think I see the difference between Ned and all the other programmer types in this thread. Ned, what would you consider the ratio of your knowledge of legal, as opposed to coding, knowledge? Please note I am talking writing actual lines of code versus visual whatever, speadsheets, or macro languages. That's why I said coding, not programming.
Many of the people here who dislike SCO have at least a tolerable language on computer programming (or work in IT from the business side), and if we took a poll I'll bet you half of us here slamming SCO have done coding in the past. That highlights a major problem in the IT, which exists in many industries. The technical people understand the field and believe in the legal system as an area to deal with disagreements and conflicts. Bill Gate's brilliance, as is the case of many large businesses, is knowing how to highjack and abuse the legal system to gain an advantage over his competition.
I could list the examples, from "Stacker", "Dr. Dos", "Netscape", et al (google them, I assume somewhere on the web the first two cases are still explained). The difference is that SCO has nobody of the calibre of Gates, and they took on a much bigger fish at first, IBM. Of course, if there intent was to simply bump the stock, and the MS comes in and gives them money with after stating, for example, "We like how you do business" (avoids direct conspiracy charges, but when the almost everyone else in IT is pissed at you, doesn't it state volumes?).
The history of patent and copyright law in recent years has resulted in some egregious abuses in the USA, and from what I understand also in Europe. Don't get me started on the abuses of it in the Biotech field, I could write a multi-page missive off the top of my head (it would be so BORING  ). Other countries in the third world also have problems with it (and then turn around and use that to justify their own piracy of things, like movie copyrights, that are much more clear cut). Add into that activist judges appointed to from both the left and the right (activist equals will warp or ignore the law to get the results the judge believes in) and the resulting venue shopping, and the resulting copyright litigation in the USA is a disaster. That protects large companies, and results in the little guy who won't sell, or gets his idea stolen, being ground up.
Look up the case of Ford and the inventor of intermittant windshield wipers. If I remember correctly, it took him twenty-thirty years, it cost the inventor his marraige and job, and in the end, when he could show that Ford had gained a benefit of almost $300 million (based on manufacturing plants, value of sold parts, etc. over the life of the patent) the JUDGE SUMMARLY REDUCTED THE AWARD TO UNDER 10 MILLION. Who says crime doesn't pay. Gates understands this all to well. SCO's problem is that it started off with IBM, and that it's case is just muddy enough to get it into court. Without the MS money, it would probably be in serious financial trouble.
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Ned
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of Aptos, CA
Oct 1999
time: 21:32
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quote:
Originally posted by Q Cubed
would you still be willing to stop distributing linux when so many other companies outside the scope of this lawsuit, such as redhat, or suse, or lycoris, would you be willing to prohibit them from engaging in the only or core thing from which they gain all of their profits? would you be willing to force those companies to pay a sizeable portion to their earnings to a company in licensing fees which this company might not even own?
if your answer is yes, then, quite frankly, i'm absolutely befuddled in how you see the free market and the legal system working. |
q cubed, the answer to this question is simple. In order to prevail against Linux, SCO must identify the infringing code or functionality (patents). Once identified, Linux distributors have a choice - pay SCO a fair royality or pull the code. They may also be subject to past royalties that may be tripled since SCO has placed them on notice.
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Ned
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of Aptos, CA
Oct 1999
time: 21:32
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quote:
Originally posted by Q Cubed
and ned, the flaw with your analogy of the building is this: software is intellectual property.
you have numerous programmers who program their own way.
one programmer may have at one point worked on unix sysv. he might have later left this job, and worked on linux. because programmers always program in the manner which they've settled into, the methods they use to solve certain problems will be the same when they run across those same problems.
it is not inconceivable that some of the code which sco thinks is offending is in fact merely code contributed by someone who worked on both kernels.
or, to put it in terms of your analogy:
should sco, not even the original owner of a building, be allowed to rent out a different building entirely that may have had the same architect and a few of the same contractors on the basis that their buildings look the same, without ever having to show proof for the deed? |
1) that a programmer writes similar code N times is either copyright infringement or not depending on the degree to which the solution dictated the form; and
2) the source of the code is no defense to patent infringement.
On the programmer bit, if I write a new song that is similar to a song I have heard, I infringe the copyright in the earlier song. If I am the author of the earlier song, I still infringe if I sold that song's copyrights to a third party.
Programmers can avoid this if the form of the solution is dictated by the problem solved so that the code and functionality merge.
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shawnmmcc
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Actually Ned, not dissappointed, I chuckled. You have been assimilated.  I thought that your posts showed at least some knowledge of programming, but an in depth knowledge of legal issues. I should have figured out you were a patent attorney.
Right here you make my point for me. Programmers see techniques as essentially open source, and you make the point legally they are not. Technical types versus lawyers. What many technical types have trouble understanding is the legal side of things. This is why Gates is brilliant. Laws are usually not written by the technical types, but by corporations, lobbyists, lawyers, and politicians jockeying for position and advantage.
By the way, you didn't respond to the portion of my post about the current breakdown of the patent system. Since I don't do this professionally, I am always interested in the opinion of somebody in the trenches? Is it as bad as the popular and technical (not legal) press paints it, or from a legal standpoint is it exaggerated?
Last edited by shawnmmcc on 10-12-2003 at 16:17
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shawnmmcc
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How about the venue shopping issue?
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Q Cubed
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t3h y3ll0w p3ril
Apr 1999
time: 23:32
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quote:
q cubed, the answer to this question is simple. In order to prevail against Linux, SCO must identify the infringing code or functionality (patents). Once identified, Linux distributors have a choice - pay SCO a fair royality or pull the code. They may also be subject to past royalties that may be tripled since SCO has placed them on notice. |
yes, but those royalties may not even count. why?
multiple times, numerous members of the open source linux community have offered to remove the offending code immediately if sco would just point it out. however, sco has not. generally, courts don't allow past royalties to be increased on account of the 'victim''s unwillingness to inform the other part of the offending material.
quote:
Programmers can avoid this if the form of the solution is dictated by the problem solved so that the code and functionality merge. |
in the case of the offending code, that's more often the case than not. furthermore, it appears as if some of the rest were shown to have been printed in some of the early books detailing os design--by showing the inner workings of unix.
quote:
shawnmmcc, I hate to disappoint you, but I started out life as a programmer before I went to law school. I am now a patent attorney and have drafted and negotiated many deals similar to the one's at issue here, including many with IBM. |
ned, you've had quite a busy life then, haven't you?
here you state you were once an aerospace engineer. color me impressed with your advanced skills:
quote:
Also, Skywalker, I used to be an aerospace engineer, not that this makes me an expert on anything I did not work on, which is classified. |
quote:
I suspect that Linux is going to have a major problem someday due to the free-form nature of its construction. While the GPL license does require the contributor to license his or her copyrights or patents to the Linux world, there seems to be no mechanism to prevent a programmer from contributing code which he does not "own" and for which he has no right to license. Linux in this case is very risky for an end user who intends to build a business upon Linux. |
there is also no mechanism to prevent a closed-source company, like microsoft or sco, from proving that it did not violate the gpl licensing agreement by placing code against the copyright owner's wishes into the closed-source program.
the only difference? linux keeps more people honest than closed source does. why? because of threats like this. a closed source company can violate someone else's copyright for years without being noticed. open source? not long before somebody notices something is up.
quote:
Also the programmer paradigm, where a programmer produces essentially the same code again and again for different clients, works if he or she owns the copyright in the code he or she generates. However, very few companies will hire consultants on this basis and the copyright in employee is owned by the company as a matter of law. |
the problem here is that sco itself violated those same copyright laws by distributing linux itself after violating the terms of the gpl. a good quantity of linux isn't owned by a company, but by individual programmers. in such a case, when the gpl is violated, the rights to use such code are stripped. when sco tried to get out of the gpl by declaring it void, while still continuing to distribute linux, it violated the same copyright law it claims to want to uphold.
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Wraith
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Austin, Texas, USA
Aug 1999
time: 23:32
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--"However, IBM may have materially infected Linux so as to pose a severe risk down the road to all Linux users."
More SCO fud. Even if IBM has broken their contract with SCO and used SYSV code in Linux, this does nothing at all to any linux user anywhere. The most SCO could do is go after their own customers or the companies running distributions. They cannot go after linux users.
This kind of thing is another reason people are sure SCO doesn't have anything, and why they're being countersued by Red Hat.
To use the Ford example, it would be like the inventor going out and telling all tlhe Ford customers they had to pay him roalties or he'd take their car. Doesn't work that way.
--"those mit mathematicians were never named, and have not stepped forward."
Didn't MIT say there was no such team? ^_^
BTW, this is why that 30 day deadline shouldn't be a big deal. SCO had to have evidence to justly bring this case forward, and they've made numerous claims of evidence in the press. If they still can't produce anything now, this far into the trial, then they're probably going to suffer court penalties for contempt and wrongfull suit, as well as more suits for libel, slander and tortous interference of business.
--"I believe that SCO has the equitable right to enforce the patents and copyrights even if it does not own them."
I like that. Hey, Ned, you infringed Joe Bob's copyright in your last post, so now I'm going to sue you for it and keep the money! Yeah, that sounds good.
--"the source of the code is no defense to patent infringement."
SCO hasn't made any patent claims. I don't think they have very many patents in any case. The only patent claims so far are in IBM's countersuit.
SCO's case against IBM is stricly contractual. At least, that's what they said last time. It does keep changing. They like to misuse the term "intellectual property" a lot, but note that they've never actually filed in court for anything other than contract violations.
--"You really have to have a good case in order to convince your board of directors to authorize it and your investment bankers to finance it."
SCO is mostly owned by the Canopy Group, a company that seems to specialize in buying companies and using them to sue other companies. They're a very closed system, and until this lawsuit got the stock price pumped, Canopy and the high SCO execs owned nearly all the stock for the company.
It's also quite interesting to what the terms of the deals between SCO and its law firms are. Boise's firm got a huge chunk of cash up front, which doesn't seem to indicate much faith in getting a damage reward. The other main firm is staffed by Darl's brother, so...
Don't forget, about the code viability stuff, that SCO needs to prove it actually has the copyright to that code first. The stuff they've been showing so far wasn't even theirs, and some of it has been public domain stuff. SCO doesn't seem to have very good records (they had to ask for a copy of some of the earlier UNIX source a while back), so this is going to be a tough roe for them to hoe.
What may have happened is this new litigious owner (The Canopy Group) did a superficially analasys and went off half-cocked. Now that they may actually be looking at the evidence, they may be getting worried, and have been stalling for time in the hopes they can actually pull something out of their ass to justify this.
Wraith
"Have you the brain worms?"
- Zim ("Invader Zim")
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shawnmmcc
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Q-Cubed, haven't been around long enough to keep track of other people's claims. If Ned has been around long enough, distinctly possible. I have also been accused of being entirely too believing.
However, if you looked at my family's disastrous medical history, from the outside it would be hard to believe. I had a friend who became nervous to drive with me, because he said that my family had a black cloud following it. Things have been much better the last decade, but it makes me hesitant about making claims of "it's impossible".
On the other hand, I am interested in how old Ned is? Two highly technical undergraduate degrees, with some overlap, plus a legal degree. My wife has two masters, in Art Therapy and Counseling Psych, and is about half-way through her Ph.D. She's also 33. This way Ned will have to admit he is middle-aged, forever ending his chance of dating Alinistra. 
Doesn't make his statements false if he has padded his resume. Some involvement in the legal/business paradigm would be consistant with his postings here. Lawyers see nothing wrong with the legal paradigm, while real world professionals outside the legal profession find the way their view their field as utterly skewed, warped, and at times dishonest. That's why there are all the lawyer jokes.
From his posting I would expect Ted's legal experience is skewed toward the corporate world, both because they in general are the people who can afford a good patent attorney, and because of his claim that
quote:
I think it is increasingly easy for an individual inventor to get a good lawfirm to take his case against the biggies |
If it's a good case, as in a slam dunk where the law firm feels largely guaranteed to get it's money. I have trouble believing, just from watching the IT industry casually over the last twenty years, and watching Microsoft rape smaller companies by utterly abusing the legal system, that the small inventor or patent holder has much of a chance except in the case of the most egregious abuse. Even then, like the Ford/intermittant wiper case I cite, the inventor often STILL LOSES.
Ned's postings are consistant with the claims of SCO and those copyright lawyers who feel, well, everything is subject to ownership and copyright. I am biased against that, however, I'm not in politics (yet, I have to retire, I work for the federal government. I definitely intend to run for the local school board) and don't get to make the rules.
Wraith, that may be exactly what Microsoft has figured (the weakness of the SCO position). As long as this keeps up, and keeps mid-sized businesses from adopting Linux, MS is smiling all the way to the bank. They probably were going to pay somebody something for the background code to MS Linux/Unix evil clone, so what not kill two birds with one stone.
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Q Cubed
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t3h y3ll0w p3ril
Apr 1999
time: 23:32
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quote:
Q-Cubed, haven't been around long enough to keep track of other people's claims. If Ned has been around long enough, distinctly possible. I have also been accused of being entirely too believing. |
that post was made less than a week ago.
quote:
Doesn't make his statements false if he has padded his resume. |
no it doesn't. it does, however, make them more suspect.
but i really was impressed.
quote:
Ned's postings are consistant with the claims of SCO and those copyright lawyers who feel, well, everything is subject to ownership and copyright. I am biased against that, however, I'm not in politics (yet, I have to retire, I work for the federal government. I definitely intend to run for the local school board) and don't get to make the rules. |
ned's statements are exactly what sco probably believes. however, ned is a lot more reasoned and doesn't make as goofily and easily disprovable claims that are completely unsubstantiated, which sets him far above darl mcbride and sontag.
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Ari Rahikkala
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Unreported loss of streaming in atomic read operation
Oct 1999
time: 07:32
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(note: here "Linux" means the kernel, and the kernel only)
quote:
Originally posted by Q Cubed
by most definitions, linux is not a unix; linux is part of the GNU project, which, amusingly enough, stands for Gnu's Not Unix. linux itself did not have its origins in unix source; as time progressed, it tried to approach unix compatibility in the form of posix-compliance. |
Actually, Linux is not really a part of the GNU project. It's an independently developed operating system kernel. The fact that it's licensed under GPL2 doesn't make it GNU. See the FSF/UNESCO free software directory (/directory is the root, /directory/GNU is GNU only) for a list of all GNU software. You can find Linux in the directory, but it's explicitly said that it's not GNU software. Now I don't know about who has the copyrights to GNU projects (*) - either it's all FSF-owned, or partly FSF-owned and partly maintainer-owned. There's code in Linux that's owned by the FSF, but not very much of it AFAIK...
Why does it seem that the only way I participate in threads of a technical nature nowadays on Apolyton is pointing out the absolutely smallest mistakes people make?
(*) There's a reason why this is important - the Free Software Foundation has the copyrights to a lot of software out there. One of the jobs of the FSF is to make sure that people don't steal that software - and yes, it is quite possible to steal GPL'd software. The foundation can not, however, take legal action concerning the copyrights of software it does not own. That's why people sometimes contribute the ownership of their software to the FSF, to get better legal protection for it...
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10-12-2003 08:26
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