Supposed 'Proof' Of SCO's Infringement Claims Against Linux Seem Lacking
from the really?-that's-it? dept
Slashdot has the story of someone involved in the SCO case finally showing off some of the "evidence" that SCO believed proved Linux infringed on SCO's copyrights. Of course, with the case basically dead due to a court ruling (one of a few) that SCO never actually held the copyrights in question, this might not matter, but it's still interesting to view -- and, yet again, suggests how incredibly weak SCO's case is. The "evidence" is in a blog comment on an otherwise unrelated blog post by Kevin McBride, a lawyer who is the brother of former SCO CEO Darl McBride, the mastermind (or puppet, depending on who you talk to) behind SCO's strategy.In that comment, Kevin McBride lists out 46 different "examples" of code that SCO claimed was copied from Unix into Linux. In case those files conveniently disappear, a Slashdot user conveniently republished the comment and archived the files. If you look through the files, you don't have to be a programmer to start questioning the copyright claims. Most of the lines are not direct copies at all, and seem to be on really, really, really basic functions -- the type of thing that just about anyone would program to create that functionality. In other words, it's difficult to see how there would be any copyright on that code at all, since it was hardly original or requiring any form of creativity. Others in the Slashdot comments point out that some of the code appears to have originated in BSD code, outside of what SCO was claiming it held rights to, and others suggest at least parts of the code came from a separate third party. Furthermore, even looking through the files it's difficult to find many cases where you could even claim "cut-and-paste copying" as was alleged. There does appear to be similar implementations of similar features, but that's quite different than copyright infringement.
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The other theory is that McBride was convinced by Microsoft (who are known to have partially funded early action in the case) to sacrifice his failing business in order to help them fight against Linux - which was gaining a lot of ground against MS in all sorts of areas. By creating FUD in the business headlines, they could convince large- and medium-scale business customers to stick with them instead of the cheaper and more stable free software. Remember that the early law suits included not only IBM but also Red Hat and one of its own customers (Autozone) in separate suits - suing major suppliers *and* major customers of Linux would fit this theory.
Even if you don't believe these conspiracy theories, it's pretty clear that SCO's case - launched on a fanfare of "thousands of lines of infringing code" - was dead in the water before it even started.
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Theories of the SCO suit
The only mystery here is why the SCO stockholders didn't file a class action for malfeasance. I am not a lawyer or a high-powered corp exec, so I don't really know. I can only speculate that by the time they figured out what was going on, SCO was so close to bankruptcy that a suit would have been pointless.
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There are similarities
That being said, code that HAS been copied over may be
1) Sourced from BSD
2) Sourced from Linux into System V (a violation of the GPL, in other words)
3) Sourced from some common third party
4) Part of Caldera's contributions to OSS (before they became SCO they OSS'ed a large portion of code)
My point: just because code is in System V and Linux doesn't mean it originated from System V.
Regardless, at this point System V isn't even owned by SCO according to Utah courts so they're legless.
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Re: There are similarities
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The only thing that's new here is that Kevin is speaking out giving his own opinion that SCO's claims have some merit (which a lot of people would vehemently disagree with, of course).
However incorrect his beliefs may be, I applaud Mr. McBride for being willing to debate with his strongest detractors on a post on his own blog. Both Mr. McBride and the other posters were polite and courteous during the exchanges, showing that even when you disagree with someone, its possible to debate them in a respectful manner.
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Re:
In any case, it's one of things I love about Tech Dirt. I've had amazing disussions w/the people here even when I've disagreed w/them, including Mike....
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Re: Re:
from the stuff i have seen, most (not all) people who comment on forums have their belief systems firmly grounded on one extreme or the other. so once any kind of debate gets started, its rare to see any sort of middle of the road level headed response.
it kind of makes it looks like the US is full of nothing but evangelical biblethumpers, atheists bent on destroying anything to do with religion, ultra-liberal bleeding hearts and uncaring corporate supporting conservatives only interesting in making a buck... with views from the middle attacked by all sides (which is part, i think, of why MOR folks dont really join such discussions usually).
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Tenacity in the face of facts to the contrary
However, even a bad coach realizes that the game is over when the final gun goes off. If these guys think that this evidence of copying is strong enough to win in court, then maybe we shouldn't be surprised that they have trouble understanding that they have lost the case.
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Re: Tenacity in the face of facts to the contrary
don't hang around with many lawyers do you?
all of an attorney's job is to amass billable hours. tenacity in the case of facts to the contrary is the surest way to amass billable hours.
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Re: Re: Tenacity in the face of facts to the contrary
Not a good strategy unless you want to work long hours all your life. Winning cases will push up your hourly rate - which is probably a better strategy in the long run.
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Another point that was brought up years back is that SCO (and Caldera before it) was still releasing all of those files on their public website under the GPL copyright license years into the IBM trial. So, assuming permission were even needed (for anything beyond fair use or independently created), SCO went ahead and gave an everlasting license to those particular files to anyone (by extension of the fact GPL licensees would be entitled to pass on those files under the same terms) and then started suing those that went ahead exercising those rights.
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Re:
Also...
Fortunately for most of us, the community has been able to craft and retool the open licenses to create significant leverage to promote openness despite changing threats. The community has also chosen time and again to exercise their rights under such licenses, eg, to "fork" (or simply start new open source software projects) and abandon support for misbehaving or untrustworthy participants. This is a great case of the wider community helping to create a commons usable by all and to band together to thwart threats. A "tax" on open source would go far to kill it off as a promoter of free markets with very low costs to innovation. I do hope this spreads to other information markets. We are all the richer (and safer) as a society for the contents created, and protectionist walls come down, enabling more people to pursue their own goals.
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Seems like most people discussing this issue on Internet forums assume that this means the material is unprotectable by copyright, but I have never seen any case law cited to support that. This would have been a major issue for decision had the infringement matter been evaluated (as opposed to ownership).
"Another point that was brought up years back is that SCO (and Caldera before it) was still releasing all of those files on their public website under the GPL copyright license years into the IBM trial. So, assuming permission were even needed (for anything beyond fair use or independently created), SCO went ahead and gave an everlasting license to those particular files to anyone (by extension of the fact GPL licensees would be entitled to pass on those files under the same terms) and then started suing those that went ahead exercising those rights."
This was also a major issue, but I've never seen anyone sho how SCO met the GPL's terms on how one grants a license.
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UNIX code
With the BSD method of development both systems are more the welcome to do as they have done. Pulling it into System V and making it proprietary, or pulling it into linux and then putting it under the GNU license. (Though I think some BSD people get pissed about making BSD code into GNU code.)
The long and short of it is that as a system, there is a UNIX copyright. The more you bust it up, and the smaller the snippet gets, copyright protections whither and fade.
There is no copyright on printf "Hello world." without the larger context.
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Re: UNIX code
my take on it was the reverse: that berkely unix (BSD) and system V (AT&T), while both based on earlier version 7 code from the 70's, had diverged enough through the 80's to be considered separate properties, hence the unix wars.
as a result, the BSD's of the world had to replace all of the old system V code and vice versa, yet had to maintain portability and interface standards, hence the POSIX standard. it's been my understanding that the GNU project was a direct result of the AT&T vs. BSD patent war and was intended to "drop in" to any unix, and eventually replace all proprietary unix. the GPL is what it is because of these unix vendor shenanigans.
the linux kernel was pretty late to the unix party and is considered to be a unix clone, rather than a variant.
i took SCO's essential issue to be that IBM donated code from AIX to the linux kernel. AIX is a variant of systemV, and according to SCO violated some sort of patent or copyright. later, SCO altered course slightly to state that linux does basically the same thing as SCO, especially on the PC, and that IBM violated it's system V licensing agreement by donating code to the linux kernel.
With the BSD method of development both systems are more the welcome to do as they have done. Pulling it into System V and making it proprietary, or pulling it into linux and then putting it under the GNU license. (Though I think some BSD people get pissed about making BSD code into GNU code.)
again, my take is the opposite: in the days of BSD and AT&T prior to the unix wars, source code was how software was delivered. this code wasn't "open" because source code at that time simply was not "closed". source code was just source code and it was hacked upon by corporate and university researchers alike as a matter of course.
indeed, my understanding is that unix didn't really become proprietary until workstation vendors like IBM, HP, DEC, and sun made unix a salable commodity. when unix was delivered to large shared systems, source code was merely a component of the proprietary hardware package.
it is my understanding that BSD didn't become "open source" until after it had become "closed source" in the hands of sun and DEC. BSD wasn't "closed" until the market shifted from in-house development and customization of systems to pre-packaged proprietary software in the 80's and 90's. this was when the various unix vendors began suing each other over providing similar functionality.
since the linux kernel came into the picture towards the end of this time (the early 90's), and the intel PC platform was generally not considered to be powerful enough for engineering at that time, i don't think much BSD code was available for PCs to be appropriated by the linux kernel project, except for maybe BSDi and it's involvement with walnut creek, freebsd and slackware.
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Re: UNIX code
No, there isn't BSD code in Linux (the kernel, that is the subject of SCOX vs IBM). By design: When Linux started, the whole USL vs UCB et al brouhaha was in full swing (if it hadn't, there probably wouldn't be any "Linux" today, but I disgress...), and so Linus and his gang were careful not to use possibly tainted code. Sure, there are broad similarities. Some come from Linus et al studying books on Unix (and operating system in general) design; others come from there just being so many ways of doing some things, and given that a kernel has to do lots of things, by force many will turn out similar; others are just the only (sane) way of getting something done.
If you take a peek at BSD kernel and Linux internals, you will see that they are so radically different that any non-trivial "copying" between the two will be more in the line of ground-up reengineering.
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Re:
http://en.wikipedia.org/wiki/Bsd
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Curious how things work sometimes
http://www.groklaw.net/article.php?story=20100712041127830
The stories aren't directly related but PJ's not known for doing something because she has an itch. She says this is for archival purposes and I don't doubt her on that score but tie that to this and is this another case of getting ready for "the company that's dead but won't lay down"?
Coincidence, yeah, but when observers of SCO start into this kind of thing I do start to wonder.
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Historically, BSD has been considered a branch of UNIX — "BSD UNIX", because it shared the initial codebase and design with the original AT&T UNIX operating system. In the 1980s, BSD was widely adopted by vendors of workstation-class systems in the form of proprietary UNIX variants such as DEC ULTRIX and Sun Microsystems SunOS. This can be attributed to the ease with which it could be licensed, and the familiarity it found among the founders of many technology companies of this era.
Though these proprietary BSD derivatives were largely superseded by the UNIX System V Release 4 and OSF/1 systems in the 1990s (both of which incorporated BSD code), later BSD releases provided a basis for several open source development projects that continue to this day.
Today, the term of "BSD" is often non-specifically used to refer to any of these BSD descendants, e.g., FreeBSD, NetBSD, OpenBSD or DragonFly, which together form a branch of the family of Unix-like operating systems.
http://en.wikipedia.org/wiki/Berkeley_Software_Distribution
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Not UNIX
Historically, BSD has been considered a branch of UNIX ...
“UNIX” is a trademark owned by somebody or other. You don’t get the right to use it unless you
Neither of which either Linux or the BSDs have done. Thus, none of them is entitled to call themselves “UNIX”.
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Re: Not UNIX
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We saw this with SCO's claim to own the copyrights where SCO lost (despite having many former executives testify for them). Likewise if SCO had owned the copyrights, with this evidence of copying and apparent similarities in the code bases, SCO may well have lost too - evidence of copying that convinces a lay person may not be enough to convince a judge or win a legal case.
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Re:
You must be reading some different article, SCO had neither.
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As for public support? Where? Was that in the same locker as the evidence?
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Re: Reason for the whole saga?
If it looks like a Unix, and runs programs like a Unix, and has system calls like a Unix... it must have been copied from our precioussss!!
Never mind that anybody with even a vague knowledge of Unix (and Linux) history, and the reason for POSIX, SUS, and the rest will tell you this is ridiculous nonsense; and where it isn't, it would be very hard to untangle and get a clear claim to anything. Shame on SCOX' management, their own tech people must have told them so. Many times over.
Add the fact that they did not own said "preciousss," as they must have known.
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Re: Re: Reason for the whole saga?
As for "they must have known," even Novell (at one point) seemed to believe that SCO owned the copyrights at issue. A jury has had its say, so that's settled, but saying "they must have known" is off base.
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"This was also a major issue"
Well that is all funny because I will show you how it is NO issue.
SCO distributed Linux source code files from their own web site, acccompanied by the GPL license. That in and itself is sufficient. If SCO wrote the code themselves then of course they are free to re-release their own code under any copyright license they wish, including the GPL.
So even if they did own the copyright on the code, they surrendered all rights to restrict its distribution when they put it up on their own web site.
So go ahead and tell us that they own the copyright, which they don't. You see it doesn't even matter anyway, even if they did, they have already given away the code.
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Re: "This was also a major issue"
Just go ahead and point me to the terms of the GPL that confirm this. Take your time. I'll wait.
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Just go ahead and point me
"This License applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License. "
If SCO owned the copyright, they placed the work, along with the GPL, on their own web site, and the notice applies.
You don't "accidentally" give away your own rights.
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Re: Just go ahead and point me
Simply redistributing a notice placed by somebody else doesn't, in my view, meet the terms of the GPL.
I'm not sure what to make of your statement that they placed the software, along with the GPL, on their website. ARe you saying they licensed their website under the GPL?
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nobody cares about "POSIX" or "UNIX" compliance anymore
Even Cygwin is touted as "Linux" compatibility, not "POSIX"
POSIX is dead. Long live POSIX. It served its cause well but it's time to move on.
POSIX is missing many of the things needed to run programs on today's desktop and that is where the new defacto "Linux" standard will step in.
And UNIX itself is even deader. Nobody cares about compliance with it any more.
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