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SCO CEO Posts Open Letter to the Open Source Community

Slams fundamental flaws in Linux development and lousy business model

In an open letter to the OS community, Darl McBride writes: 'The most controversial issue in the information technology industry today is the ongoing battle over software copyrights and intellectual property. This battle is being fought largely between vendors who create and sell proprietary software, and the Open Source community. My company, the SCO Group, became a focus of this controversy when we filed a lawsuit against IBM alleging that SCO's proprietary Unix code has been illegally copied into the free Linux operating system...' Read the full letter here:

The most controversial issue in the information technology industry today is the ongoing battle over software copyrights and intellectual property. This battle is being fought largely between vendors who create and sell proprietary software, and the Open Source community. My company, the SCO Group, became a focus of this controversy when we filed a lawsuit against IBM alleging that SCO’s proprietary Unix code has been illegally copied into the free Linux operating system. In doing this we angered some in the Open Source community by pointing out obvious intellectual property problems that exist in the current Linux software development model.

This debate about Open Source software is healthy and beneficial. It offers long-term benefits to the industry by addressing a new business model in advance of wide-scale adoption by customers. But in the last week of August two developments occurred that adversely affect the long-term credibility of the Open Source community, with the general public and with customers.

The first development followed another series of Denial of Service (DDoS) attacks on SCO, which took place two weeks ago. These were the second and third such attacks in four months and have prevented Web users from accessing our web site and doing business with SCO. There is no question about the affiliation of the attacker – Open Source leader Eric Raymond was quoted as saying that he was contacted by the perpetrator and that “he’s one of us.” To Mr Raymond’s partial credit, he asked the attacker to stop. However, he has yet to disclose the identity of the perpetrator so that justice can be done.

No one can tolerate DDoS attacks and other kinds of attacks in this Information Age economy that relies so heavily on the Internet. Mr Raymond and the entire Open Source community need to aggressively help the industry police these types of crimes. If they fail to do so it casts a shadow over the entire Open Source movement and raises questions about whether Open Source is ready to take a central role in business computing. We cannot have a situation in which companies fear they may be next to suffer computer attacks if they take a business or legal position that angers the Open Source community. Until these illegal attacks are brought under control, enterprise customers and mainstream society will become increasingly alienated from anyone associated with this type of behavior.

The second development was an admission by Open Source leader Bruce Perens that UNIX System V code (owned by SCO) is, in fact, in Linux, and it shouldn’t be there. Mr Perens stated that there is “an error in the Linux developer’s process” which allowed Unix System V code that “didn’t belong in Linux” to end up in the Linux kernel (source: ComputerWire, August 25, 2003). Mr Perens continued with a string of arguments to justify the “error in the Linux developer’s process.” However, nothing can change the fact that a Linux developer on the payroll of Silicon Graphics stripped copyright attributions from copyrighted System V code that was licensed to Silicon Graphics under strict conditions of use, and then contributed that source code to Linux as though it was clean code owned and controlled by SGI. This is a clear violation of SGI’s contract and copyright obligations to SCO. We are currently working to try and resolve these issues with SGI.

This improper contribution of Unix code by SGI into Linux is one small example that reveals fundamental structural flaws in the Linux development process. In fact, this issue goes to the very heart of whether Open Source can be trusted as a development model for enterprise computing software. The intellectual property roots of Linux are obviously flawed at a systemic level under the current model. To date, we claim that more than one million lines of Unix System V protected code have been contributed to Linux through this model. The flaws inherent in the Linux process must be openly addressed and fixed.

At a minimum, IP sources should be checked to assure that copyright contributors have the authority to transfer copyrights in the code contributed to Open Source. This is just basic due diligence that governs every other part of corporate dealings. Rather than defend the “don’t ask, don’t tell” Linux intellectual property policy that caused the SCO v IBM case, the Open Source community should focus on customers’ needs. The Open Source community should assure that Open Source software has a solid intellectual property foundation that can give confidence to end users. I respectfully suggest to Open Source developers that this is a far better use of your collective resources and abilities than to defend and justify flawed intellectual property policies that are out of sync with the needs of enterprise computing customers.

I believe that the Open Source software model is at a critical stage of development. The Open Source community has its roots in counter-cultural ideals – the notion of “Hackers” against Big Business – but because of recent advances in Linux, the community now has the opportunity to develop software for mainstream American corporations and other global companies. If the Open Source community wants its products to be accepted by enterprise companies, the community itself must follow the rules and procedures that govern mainstream society. This is what global corporations will require. And it is these customers who will determine the ultimate fate of Open Source – not SCO, not IBM, and not Open Source leaders.

Some enterprise customers have accepted Open Source because IBM has put its name behind it. However, IBM and other Linux vendors are reportedly unwilling to provide intellectual property warranties to their customers. This means that Linux end users must take a hard look at the intellectual property underpinnings of Open Source products and at the GPL (GNU General Public License) licensing model itself.

If the Open Source community wants to develop products for enterprise corporations, it must respect and follow the rule of law. These rules include contracts, copyrights and other intellectual property laws. For several months SCO has been involved in a contentious legal case that we filed against IBM. What are the underlying intellectual property principles that have put SCO in a strong position in this hotly debated legal case? I’d summarize them in this way:

“Fair use” applies to educational, public service and related applications and does not justify commercial misappropriation. Books and Internet sites intended and authorized for the purpose of teaching and other non-commercial use cannot be copied for commercial use. We believe that some of the SCO software code that has ended up in the Linux operating system got there through this route. This violates our intellectual property rights.

Copyright attributions protect ownership and attribution rights –they cannot simply be changed or stripped away. This is how copyright owners maintain control of their legal rights and prevent unauthorized transfer of ownership. Our proprietary software code has been copied into Linux by people who simply stripped off SCO’s copyright notice or contributed derivative works in violation of our intellectual property rights. This is improper.

In copyright law, ownership cannot be transferred without express, written authority of a copyright holder. Some have claimed that, because SCO software code was present in software distributed under the GPL, SCO has forfeited its rights to this code. Not so – SCO never gave permission, or granted rights, for this to happen.

Transfer of copyright ownership without express written authority of all proper parties is null and void.

Use of derivative rights in copyrighted material is defined by the scope of a license grant. An authorized derivative work may not be used beyond the scope of a license grant. License grants regarding derivative works vary from license to license – some are broad and some are narrow. In other words, the license itself defines the scope of permissive use, and licensees agree to be bound by that definition. One reason SCO sued IBM is due to our assertions that IBM has violated the terms of the specific IBM/SCO license agreement through its handling of derivative works. We believe our evidence is compelling on this issue.

The copyright rules that underlie SCO’s case are not disputable. They provide a solid foundation for any software development model, including Open Source. Rather than ignore or challenge copyright laws, Open Source developers will advance their cause by respecting the rules of law that built our society into what it is today. This is the primary path towards giving enterprise companies the assurance they need to accept Open Source products at the core of their business infrastructure. Customers need to know that Open Source is legal and stable.

Finally, it is clear that the Open Source community needs a business model that is sustainable, if it is to grow beyond a part-time avocation into an enterprise-trusted development model. Free Open Source software primarily benefits large vendors, which sell hardware and expensive services that support Linux, but not Linux itself. By providing Open Source software without a warranty, these largest vendors avoid significant costs while increasing their services revenue. Today, that’s the viable Open Source business model. Other Linux companies have already failed and many more are struggling to survive. Few are consistently profitable. It’s time for everyone else in the industry, individuals and small corporations, to under this and to implement our own business model – something that keeps us alive and profitable. In the long term, the financial stability of software vendors and the legality of their software products are more important to enterprise customers than free software. Rather than fight for the right for free software, it’s far more valuable to design a new business model that enhances the stability and trustworthiness of the Open Source community in the eyes of enterprise customers.

A sustainable business model for software development can be built only on an intellectual property foundation. I invite the Open Source community to explore these possibilities for your own benefit within an Open Source model. Further, the SCO Group is open to ideas of working with the Open Source community to monetize software technology and its underlying intellectual property for all contributors, not just SCO.

In the meantime, I will continue to protect SCO’s intellectual property and contractual rights. The process moving forward will not be easy. It is easier for some in the Open Source community to fire off a “rant” than to sit across a negotiation table. But if the Open Source community is to become a software developer for global corporations, respect for intellectual property is not optional – it is mandatory. Working together, there are ways we can make sure this happens.

Best regards to all,

Darl McBride
CEO
The SCO Group

More Stories By Jeremy Geelan

Jeremy Geelan is Chairman & CEO of the 21st Century Internet Group, Inc. and an Executive Academy Member of the International Academy of Digital Arts & Sciences. Formerly he was President & COO at Cloud Expo, Inc. and Conference Chair of the worldwide Cloud Expo series. He appears regularly at conferences and trade shows, speaking to technology audiences across six continents. You can follow him on twitter: @jg21.

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Most Recent Comments
Stephen Cropp 09/09/03 09:05:16 AM EDT

Darl,
Quite simply, put up or shut up. Unless you produce evidence to the contrary, your allegations are baseless, worthless and nothing more than libel. In fact, the more you spread them, the more you are opening yourself up to a suit.

Bruce Perens has every right to now require you to retract your statements or quote him in sentiment in which his words were originally intended. You have blatantly misquoted his original meaning. ESR also has the same right given you have also misquoted the original intent of what he said. Again, libel and slander spring to mind. Subtle though they are, they are definitely there.

I would also like to point out that your attacks against the GPL are proven to be nothing more than hot air by your continued use of products governed by this license. I point directly to the latest announcements for many of your products which include things such as the GNU development tools, Samba and many other related products. I also point out that licenses such as the Apache and Xfree86 license are very similar in many ways.

In short, put up or shut up. Personally I am getting absolutely sick to death of your continued attempts to try and stay relevant and make yourself seem big and important. Your continued press releases are nothing more than a joke. Your products have been irrelevant for years and have been losing market share for a long time. It has even been stated in your recent filings with the SEC that if SCOsource fails, so too does the rest of SCO Group. Where is SCOsource trying to get its primary income from?

Basically, either get out of our lives or come forward with real evidence instead of unsubstantiated allegations. I'm entirely sick of your childish and immature press releases, posturing, bullish tactics. Most of all, I'm sick of your continued attempts to cast Fear, Uncertainty and Doubt over the whole OpenSource and Free Software community.

darkseer 09/09/03 09:03:45 AM EDT

Mr. McBride,
I respectfully suggest that is is you and business in general that must respect the open source community and not the other way around. If the managment of your company is so incompotent as to not be able to keep you secrets or IP from public view that is not our proplem. There is a word for what you believe and it is hubris. You cannot un-ring the bell or close pandora's box and you are arrogant to try.

James Susanka 09/09/03 08:58:04 AM EDT

Open Letter to Darl and other CEO's and CIO's,

You talk respect but don't show any yourself. How does your company protect itself from IP claims besides charging
outrageous sums of money so you can have lawyers on had in case you do get sued.
Because I read a book and I write a script and the script resembles what I read in the book -
this is infringing on IP rights?
So if that is true then when I read a book I cannot repeat any phrase from it at work
because it is copyrighted and I am using the phrase for business.
The IP rights issue is very controversial and doesn't apply to software.
Are the algorithms that I learned in college in my math classes IP property?
So if I use the algorithms and formulas at work I can be sued by the book publisher or
author that wrote the math books from which I learned the algorithms and formulas.
I took Unix classes at college and they were on Unix System V - so I cannot use that knowledge
I learned at school on my job because I have to pay you a license for the IP property that I read at college.
I write scripts everyday on the job that copy the init scripts from /etc/init.d from
Unix systems that are proprietary - do I have to pay a
license fee for those? Where do we draw the line? KDE had the feature of open recent documents
from the start menu before windows did - is that not infringing on IP rights of KDE?
These are the very fundamentals of your argument.
I code because I love it and not because I am looking for a business model. Open Source is about
the art and love of programming.
Not about a business model that you learned while you got you MBA.
I can save companies money by filling their IT needs by coding at a substantial savings.
I enjoy this and I happen to use open source software as a means to do this.
I use the GPL because I like to share the knowledge and hope it helps someone else with a problem without
having to pay companies like your own.
When I educate a company about the GPL they gladly except it and have no legal problems with it.
It is only companies like your own that spread FUD about the GPL that have problems with it because it
doesn't fit your business models.
Again - I would like to know just how proprietary companies protect their customers from IP violations.
Please I really want to know.
Because apparently it wasn't very good since you were releasing your own Linux version with your own "IP property".
I would say your development model is flawed since it did not catch this years after the fact.
Otherwise please stop these publicity stunts and misquotes just because you are trying to build your case.

James Susanka 09/09/03 08:57:51 AM EDT

Open Letter to Darl and other CEO's and CIO's,

You talk respect but don't show any yourself. How does your company protect itself from IP claims besides charging
outrageous sums of money so you can have lawyers on had in case you do get sued.
Because I read a book and I write a script and the script resembles what I read in the book -
this is infringing on IP rights?
So if that is true then when I read a book I cannot repeat any phrase from it at work
because it is copyrighted and I am using the phrase for business.
The IP rights issue is very controversial and doesn't apply to software.
Are the algorithms that I learned in college in my math classes IP property?
So if I use the algorithms and formulas at work I can be sued by the book publisher or
author that wrote the math books from which I learned the algorithms and formulas.
I took Unix classes at college and they were on Unix System V - so I cannot use that knowledge
I learned at school on my job because I have to pay you a license for the IP property that I read at college.
I write scripts everyday on the job that copy the init scripts from /etc/init.d from
Unix systems that are proprietary - do I have to pay a
license fee for those? Where do we draw the line? KDE had the feature of open recent documents
from the start menu before windows did - is that not infringing on IP rights of KDE?
These are the very fundamentals of your argument.
I code because I love it and not because I am looking for a business model. Open Source is about
the art and love of programming.
Not about a business model that you learned while you got you MBA.
I can save companies money by filling their IT needs by coding at a substantial savings.
I enjoy this and I happen to use open source software as a means to do this.
I use the GPL because I like to share the knowledge and hope it helps someone else with a problem without
having to pay companies like your own.
When I educate a company about the GPL they gladly except it and have no legal problems with it.
It is only companies like your own that spread FUD about the GPL that have problems with it because it
doesn't fit your business models.
Again - I would like to know just how proprietary companies protect their customers from IP violations.
Please I really want to know.
Because apparently it wasn't very good since you were releasing your own Linux version with your own "IP property".
I would say your development model is flawed since it did not catch this years after the fact.
Otherwise please stop these publicity stunts and misquotes just because you are trying to build your case.

James Susanka 09/09/03 08:57:15 AM EDT

Open Letter to Darl and other CEO's and CIO's,

You talk respect but don't show any yourself. How does your company protect itself from IP claims besides charging
outrageous sums of money so you can have lawyers on had in case you do get sued.
Because I read a book and I write a script and the script resembles what I read in the book -
this is infringing on IP rights?
So if that is true then when I read a book I cannot repeat any phrase from it at work
because it is copyrighted and I am using the phrase for business.
The IP rights issue is very controversial and doesn't apply to software.
Are the algorithms that I learned in college in my math classes IP property?
So if I use the algorithms and formulas at work I can be sued by the book publisher or
author that wrote the math books from which I learned the algorithms and formulas.
I took Unix classes at college and they were on Unix System V - so I cannot use that knowledge
I learned at school on my job because I have to pay you a license for the IP property that I read at college.
I write scripts everyday on the job that copy the init scripts from /etc/init.d from
Unix systems that are proprietary - do I have to pay a
license fee for those? Where do we draw the line? KDE had the feature of open recent documents
from the start menu before windows did - is that not infringing on IP rights of KDE?
These are the very fundamentals of your argument.
I code because I love it and not because I am looking for a business model. Open Source is about
the art and love of programming.
Not about a business model that you learned while you got you MBA.
I can save companies money by filling their IT needs by coding at a substantial savings.
I enjoy this and I happen to use open source software as a means to do this.
I use the GPL because I like to share the knowledge and hope it helps someone else with a problem without
having to pay companies like your own.
When I educate a company about the GPL they gladly except it and have no legal problems with it.
It is only companies like your own that spread FUD about the GPL that have problems with it because it
doesn't fit your business models.
Again - I would like to know just how proprietary companies protect their customers from IP violations.
Please I really want to know.
Because apparently it wasn't very good since you were releasing your own Linux version with your own "IP property".
I would say your development model is flawed since it did not catch this years after the fact.
Otherwise please stop these publicity stunts and misquotes just because you are trying to build your case.

Scott 09/09/03 08:52:27 AM EDT

When did Microsoft ever offer a warrantee? When have we been able to go to MS and complain about the poor quality of their operating system and get results? McBride doesnt mind commenting about the Open Source community but is strangely quite regarding Microsoft. The Microsoft/SCO lawsuit will in the end amount to nothing.

HMTKSteve 09/09/03 08:44:14 AM EDT

It seems to me that the only reason SCO would benefit from the code NOT being removed from Linux is that they can turn around and try to make a profit via their licensing scheme.
If there is no SCO code in Linux, how can they charge a license fee for said code?
If they tell the kernel crew about said code and it is removed then, once again, they can not charge for a license!
I for one believe a seperate group should be set up where ALL source code is gathered and any copying arguments can be settled.
Sort of like the patent office, but more of a software clearing house.
As we all know, you can never know what is in closed source software as it is CLOSED!
Kind of liking guessing what door holds the vacation package?

James Susanka 09/09/03 08:27:21 AM EDT

Darl,

You talk respect but don't show any yourself. How does your company protect itself from IP claims besides charging outrageous sums of money so you can have lawyers on hand in case you do get sued.
Because I read a book and I write a script and the script resembles what I read in the book - this is infringing on IP rights? So if that is true then when I read a book I cannot repeat any phrase from it at work because it is copyrighted and I am using the phrase for business.
The IP rights issue is very controversial and doesn't apply to software. Are the algorithms that I learned in college in my math classes IP property? So if I use the algorithms and formulas at work I can be sued by the book publisher or author that wrote the math books from which I learned the algorithms and formulas. I took Unix classes at college and they were on Unix System V - so I cannot use that knowledge I learned at school on my job because I have to pay you a license for the IP property that I read at college. I write scripts everyday on the job that copy the init scripts from /etc/init.d from Unix systems that are proprietary - do I have to pay a license fee for those? Where do we draw the line? These are the very fundamentals of your argument.
I code because I love it and not because I am looking for a business model. Open Source is about the art and love of programming. Not about a business model that you learned while you got you MBA.
I can save companies money by filling their IT needs by coding at a substantial savings. I enjoy this and I happen to use open source software as a means to do this. I use the GPL because I like to share the knowledge and hope it helps someone else with a problem with out having to pay companies like your own. When I educate a company about the GPL they gladly except it and have no legal problems with it. It is only companies like your own that spread FUD about the GPL that have problems with it because it doesn't fit your business models. Again - I would like to know just how proprietary companies protect their customers from IP violations. Please I really want to know. Because apparently it wasn't very good since you were releasing your own Linux version with your own "IP property". I would say your development model is flawed since it did not catch this years after the fact. Otherwise please stop these publicity stunts and misquotes just because you are trying to build your case.

Robert Chambers 09/09/03 08:27:19 AM EDT

I wonder how SCO feels about partnering with Microsoft, a company that has been found guilty on not only stealing others code but whole applications.

James Susanka 09/09/03 08:13:20 AM EDT

Darl,

You talk respect but don't show any yourself. How does your company protect itself from IP claims besides charging outrageous sums of money so you can have lawyers on had in case you do get sued.

Because I read a book and I write a script and the script resembles what I read in the book - this is infringing on IP rights?

So if that is true then when I read a book I cannot repeat any phrase from it at work because it is copyrighted and I am using the phrase for business.

The IP rights issue is very controversial and doesn't apply to software. Are the algorithms that I learned in college in my math classes IP property? So if I use the algorithms and formulas at work I can be sued by the book publisher or author that wrote the math books from which I learned the algorithms and formulas. I took Unix classes at college and they were on Unix System V - so I cannot use that knowledge I learned at school on my job because I have to pay you a license for the IP property that I read at college. I write scripts everyday on the job that copy the init scripts from /etc/init.d from Unix systems that are proprietary - do I have to pay a license fee for those? Where do we draw the line?

These are the very fundamentals of your argument. I code because I love it and not because I am looking for a business model. Open Source is about the art and love of programming. Not about a business model that you learned while you got you MBA. I can save companies money by filling their IT needs by coding at a substantial savings. I enjoy this and I happen to use open source software as a means to do this. I use the GPL because I like to share the knowledge and hope it helps someone else with a problem with out having to pay companies like your own. When I educate a company about the GPL they gladly except it and have no legal problems with it. It is only companies like your own that spread FUD about the GPL that have problems with it because it doesn't fit your business models.

Again - I would like to know just how proprietary companies protect their customers from IP violations. Please I really want to know.
Because apparently it wasn't very good since you were releasing your own Linux version with your own "IP property". I would say your development model is flawed since it did not catch this years after the fact.

Otherwise please stop these publicity stunts and misquotes just because you are trying to build your case.

Steve Jump 09/09/03 08:10:14 AM EDT

I find the comments that Mr McBride makes about supporting the principles behind Open Source community especially at this vital time in its history, to be just a little ingenuous. The minor misdirection to an unaware audience is easily highlighted by one simple ommission from all of this blustering. If Mr. McBride was truly keen on the development of Open source, he would readily publish the 'offending code', he would then be at liberty to ask that every trace be removed from the current source trees immediately.

Such a response would clearly show true motivations; those of SCO not to be pure greed and truly in protection of Intellectual Property; and those of the Open Source community in support of the integrity that Mr. McBride is maligning so readily.

That some code may or may not have been erroneously released under GPL is not the issue here, will the Open Source community act to remove any disputed code is the issue, I believe the answer is yes. Will this make the SCO corporate legal department happy, I believe it will not.

If as it appears many disputed lines of code may have been accidentally included, perhaps by well intentioned but legally naive people, who can be held responsible? Presumably their employers at the time? Would this same criteria apply to the people who approved the release of code under GPL at Caldera?

This story will run, the motivations of the key players are all too clear, promoting the general public good by making a clear and public declaration seems unlikely, the search for the $$$ is all there is left.

Michael Cox 09/09/03 08:07:04 AM EDT

Ho, ho, ho. McBride says, "...it is clear that the Open Source community needs a business model that is sustainable..."

What? Like YOURS, McBride? Linux will still around long after the tech world has forgotten SCO as a minor and inconsequential bump in the road from days gone by.

Too funny. Maybe McBride's next job will be as a writer for Leno.

fix</i> 09/09/03 08:02:52 AM EDT

just fixing the italics

vagos 09/09/03 08:01:28 AM EDT

A. Where are the facts?
B. What are they asking for exactly?
C. Will they benefit if they win? (With Linux out of the picture, archaic Unix would dissapear in a flash)

I still can't figure these out in any of SCO's answers...

Michael Cox 09/09/03 08:00:38 AM EDT

Ho, ho, ho. McBride says, "...it is clear that the Open Source community needs a business model that is sustainable..."

What? Like YOURS, McBride? Linux will still around long after the tech world has forgotten SCO as a minor and inconsequential bump in the road from days gone by.

Too funny. Maybe McBride's next job will be as a writer for Leno.

Nathan Hand 09/09/03 07:51:23 AM EDT

"Secondly, no-one seems to have answered the perfectly legitimate question about the open source development process - just how DO you ensure that code submitted by a developer HASN'T been ripped off, just because the developer claims that it hasn't? McBride IS right when he says that Open Source is still maturing and we DO need to look at, and answer these questions."

How do you ensure it in any project, open source or closed sourced? You ask the author. You assume they tell the truth. How else could you do it? There's no magic marker on code that says "this is owned by foo". There's no central code repository where you can check ownership of a fragment. If there's no attribution in the comments or the README then there's practically nothing you can do. It's not like the Linux developers have access to SCO's source code so they can check every submission, looking for violations. SCO keeps their code secret. The best that the Linux developers can do is assume the author is telling the truth.

But this is true for ALL projects. I've worked on commercial projects and I know full well that violations occur. I've seen BSD code dropped into proprietary products with the BSD attributions stripped out. SCO put a slide up at SCOForum... it was code stolen from BSD! SCO thinks it's theirs but the history of the code is well known and it most definitely has gone from BSD to SCO. A SCO developer stole it and assumed nobody would ever know. Why isn't SCO "respecting the IP" of BSD developers?

The reality is, Linux is far more "IP accountable" than any closed source product. If a company developing a closed source product copied code from SCO, would SCO ever know? Of course not. But any company can look at Linux source code to determine if violations occur. The Linux model encourages transparency and "no secrets". The result is that violations are infrequent (in fact, SCO is the first claimant ever and their case looks VERY weak).

It's the closed source model where the vast majority of IP violations occur but most of them go by unnoticed.

There is nothing "immature" about the Linux model. It is following best practises of the industry and then some. SCO is trying to paint a picture of "immaturity" because they want to win this case in the court of public opinion, but I have every confidence that they will never win this case in a court of law.

Dr Stupid 09/09/03 07:44:41 AM EDT

Bryn,

"just how DO you ensure that code submitted by a developer HASN'T been ripped off, just because the developer claims that it hasn't?"

The simple fact, which applies to *all* development processes, is that you cannot be sure. Suppose an ex-employee of company A writes some code for company B. How does the head of company B know that code is not "ripped off" from company A? He cannot see company A's code. Even if he could check with company A, what about the millions of other companies in the world? He has no option but to accept the word of his employee. The situation is the same regarding a newspaper editor and the stories submitted to him by journalists.

All one can do is make sure there is a clear audit trail of who contributed what code, so that in the case of future infringement the culprit can be indentified. In the case of the Linux kernel, this is now very definitely the case. Other projects should check their own arrangements.

The point to bear in mind, however, is that the same considerations apply in proprietary software development - this is not an issue unique to the open source community.

Marc Schipperheyn 09/09/03 07:31:24 AM EDT

This is a nice way to try to put a righteous face on the fact that a company selling an obsolete technology tries to extort money from healthy companies on some possible *minor* infringements in a huge code base. Their alternative is bankruptcy, which is the healthy way the market works. The alternative is find a reason to sue a financially healthy company (IBM). And the ease with which this is possible is the unhealthy side effect of the American legal system.

Maybe, the man is technically correct. These pieces of code should then be removed/rewritten. But this in no way justifies the fact that SCO is holding hostage not only the open source community but also the customers who have implemented Linux.

Of course, in the end, SCOs case has little legal merit. So I would appreciate it if they just acted out the last stage in their absurd little drama piece and went bankrupt. Bye, bye SCO, there are better companies than you.

Bryn 09/09/03 07:27:12 AM EDT

I disagree with McBride's comments about the alleged DDoS attacks for the same reasons given by others above (its an idiot individual, not the whole community). I also hold no credance for claims of 'millions' of lines of copied code until SCO can back this up with evidence.

However, I would make a couple of observations. Firstly McBride does make the effort to argue his standpoint clearly and rationally, even if he misquotes Bruce Perens in the process. Many of the comments in this forum do nothing of the sort in reply. Thankfully there are a few decent comments that rebutt McBride's claims well, but if all you are capable of is adolescent name calling, why bother?

Secondly, has anyone answered the perfectly legitimate question about the open source development process - just how DO you ensure that code submitted by a developer HASN'T been ripped off, just because the developer claims that it hasn't? I believe McBride IS right when he says that Open Source is still maturing and we DO need to look at, and answer these questions.

Hart 09/09/03 07:10:50 AM EDT

Regarding "Bruce Perens says (in his web site) regarding the SGI code.."
Wellll McBroode.. oops McBride must have running out of twisted idea so he must have scavenging all the discussion/newsgroup for anything that can be twisted for his personal benefit. If really the code in ? was from SGI why then sue IBM unless he(Bride or whatever) did not have exact base for the litigation so IBM is nice target for more money. It shows in fact that this SGI stuff is NEW to mcbride.

I think that mcbride knows that he is on losing side; this comment " A sustainable business model for software development can be built only on an intellectual property foundation. I invite the Open Source community to explore these possibilities for your own benefit within an Open Source model. Further, the SCO Group is open to ideas of working with the Open Source community to monetize software technology and its underlying intellectual property for all contributors, not just SCO. "
INDICATE that really Bride is NOW lost self assurance that whatever claimed is valid.

Whatever he is doing now is just a puppy bark. BUT really Linux community got to be very vey wary of ushit oooops microsoft's craftiness.

Nathan Hand 09/09/03 07:02:12 AM EDT

"But if the Open Source community is to become a software developer for global corporations, respect for intellectual property is not optional – it is mandatory."

When will SCO begin to respect intellectual property owned by Linus Torvalds and others? SCO continues to distribute the Linux kernel in violation of the licensing terms. This is not an accident or an oversight: Darl McBride has officially stated that he refuses to honor the Linux licensing terms.

SCO has attacked the Linux licensing in public forums, yet SCO continues to sell other products using the exact same licensing. SCO sells a product called Samba; it is licensed under the same terms as Linux. SCO wants to attack the licensing of the Linux kernel, claim that is invalid, yet seems to agree to the terms when it suits them. Hypocrisy!

If SCO thinks the license is invalid then nothing else gives SCO the right to distribute Linux or Samba. There is no other licensing terms available and the code is not in the public domain: Linux and Samba are collectively copyrighted by a community of authors. SCO should cease and desist from selling and distributing both products immediately.

"Working together, there are ways we can make sure this happens."

Nobody in the open source community will work with SCO. They have profitted from Linux for several years but now they stab Linux in the back, insult the key developers, and attempt to steal ownership of intellectual property that is not rightfully theirs. People have long memories. Nobody will forget what SCO has done to Linux.

John Gabriel 09/09/03 06:54:32 AM EDT

An Open Response to Darl McBride's Open Letter to the Open Source Community
(First Draft)

Dear Mr. McBride,

First, let me introduce myself. My name is John Gabriel. I have been working in the technical field for 15 years, as a Network Administrator, Applications Manager, Network Manager, Sr. Networking Engineer, and now, Freelance Consultant. And, yes, I'm an MCSE.

My first experiences with Unix occurred in the late 1970's, during school field trips to local colleges. I also did Unix technical support for students while taking a class in Pascal in the late 1980's. My first experience with Linux dates to 1994, when I downloaded whatever Linux kernel was available at that time.

While I did install it successfully, on a Compaq Deskpro 386/25, I quickly abandoned it as the system didn't have enough memory to support X Windows. Several years later, in 1998, I became a Caldera customer, with a purchase of Caldera OpenLinux Base ver. 1.22, with Linux kernel 2.0.33. I ran into similar problems again.

About a year ago, I became interested again Linux, and now run Linux on my home workstation in a dual-boot configuration with Windows XP.

About 4-5 months ago, I began following the SCO v. IBM story. I was at first inclined to be open-minded towards SCO's claims. It wouldn't be the first time a small company has had its copyrights violated by a larger vendor, though the violator is usually, in my experience, Microsoft, as exemplified by Caldera's history with DR-DOS.

However, the more I researched the story and SCO's claims, the more convinced I became that SCO's claims were, well, baseless. Being the type that usually likes to "root for the underdog", I was surprised by my conclusions.

Anyway, that's enough introduction. What follows is an Open Response to your Open Letter to the Open Source Community. I grant everyone, including you, permission to re-publish it, or quote from it, without restriction, except that my comments be properly attributed to myself. Consider it under a "BSD-style" license if you like.

1) The most controversial issue in the information technology industry today is the ongoing battle over software copyrights and intellectual property. This battle is being fought largely between vendors who create and sell proprietary software, and the Open Source community. My company, the SCO Group, became a focus of this controversy when we filed a lawsuit against IBM alleging that SCO’s proprietary Unix code has been illegally copied into the free Linux operating system. In doing this we angered some in the Open Source community by pointing out obvious intellectual property problems that exist in the current Linux software development model.

Mr. McBride,

Response to Paragraph 1 of your "Open Letter":

This is very difficult to respond to, because your analysis of the issues and of the reasons for the Open Source community's anger is, in the words of the great physicist Wolfgang Pauli, "so bad it's not even wrong."

For instance, your own lawsuit against IBM does not allege that "SCO's proprietary Unix code has been illegally copied into Linux" -- it alleges that code *owned* by IBM but under contractual "control" rights to SCO has been copied into Linux. Surely, you don't dispute that IBM owns the relevant copyrights and patents to NUMA, JFS, and RCU?

Or do you dispute Section 2 of Exhibit C on your web site, the ATT-IBM sideletter agreement, which states in part, "we (ATT) agree that modifications and derivative works prepared by or for you (IBM) are owned by you"?

The truth is there are many reasons the Open source community is angered with you and the actions of The SCO Group and The Canopy Group, none of which have too do with "intellectual property problems that exist in the current Linux software development model." We don't believe such problems exist. We do believe that The SCO Groups legal theories of what constitutes "derivative works" have no basis in copyright, patent, or trademark law, have no basis in SCO's contracts with various licensees, and are frivolous in the legal sense.

We are further angered by your statements in the press comparing us to communists, thieves, and terrorists, and implying that we knowingly aid terrorists. We also object to statements that we do not care about intellectual property. As I think you will discover, if you read this response all the way though, we not only care about it very deeply, but are quite knowledgeable on the subject.

Finally, we are angry because of statements such as are contained in your opening paragraph, throughout the rest of the Open Letter, and elsewhere, that can at best be construed as ignorant of the underlying issues and documents, somewhat less charitably as technological, managerial, and communicative incompetence, or, at worst, willful and deceitful misstatement and manipulation of the known facts.

2) This debate about Open Source software is healthy and beneficial. It offers long-term benefits to the industry by addressing a new business model in advance of wide-scale adoption by customers. But in the last week of August two developments occurred that adversely affect the long-term credibility of the Open Source community, with the general public and with customers.

Response to Paragraph 2:

There is nothing "new" about the open source business model. The Open Source business model is much older than the proprietary software business model. The FSF foundation was first founded in 1985. Before that, at the dawn of the electronic computer era in the 1930's and 40's, research, ideas, and source code was shared freely in order to propel the advancement of computer architectures. This continued well into the present, and other projects that would be considered "Open Source" now, though the term was not widespread at the time, would include the Apple I, and the Altair -- the first inexpensive and programmable electronic computers for consumers.

3) The first development followed another series of Denial of Service (DDoS) attacks on SCO, which took place two weeks ago. These were the second and third such attacks in four months and have prevented Web users from accessing our web site and doing business with SCO. There is no question about the affiliation of the attacker – Open Source leader Eric Raymond was quoted as saying that he was contacted by the perpetrator and that “he’s one of us.” To Mr Raymond’s partial credit, he asked the attacker to stop. However, he has yet to disclose the identity of the perpetrator so that justice can be done.

Response to Paragraph 3:

Eric Raymond's attribution of the recent SCO downtime to a DoS attack by a senior engineer in the Linux community is regarded by many in the community as unreliable. I, myself, ran some traceroutes while SCO's website was down, reported them at Groklaw and Slashdot, and determined that if there was a DoS attack in progress, it was like none ever seen before: despite the traffic that would be necessary to shut down SCO's web site, no other close sites on the Center 7 network appeared to be affected. Furthermore, repeated calls to SCO confirmed that the site was down for maintenance. Until SCO provides logs to prove it was under a DoS attack, I'm afraid many in the community will regard SCO's accusations as spurious. So, you see, there are questions as to the reasons for and provenance of SCO's downtime in the month of August and early September.

4) No one can tolerate DDoS attacks and other kinds of attacks in this Information Age economy that relies so heavily on the Internet. Mr Raymond and the entire Open Source community need to aggressively help the industry police these types of crimes. If they fail to do so it casts a shadow over the entire Open Source movement and raises questions about whether Open Source is ready to take a central role in business computing. We cannot have a situation in which companies fear they may be next to suffer computer attacks if they take a business or legal position that angers the Open Source community. Until these illegal attacks are brought under control, enterprise customers and mainstream society will become increasingly alienated from anyone associated with this type of behavior.

Response to Paragraph 4:

Anyone would agree with the general tenor of your statements, Mr. McBride. However, it looks like misdirection to many of us, since the provenance of of SCO's downtime remains in doubt, since your statements do not address the issues of SCO's case against IBM nor its accusations about misappropriation of intellectual property rights in general, and since such attacks are frowned upon and abhorred by the large majority of the open source community. In short, your continued and unsubstantiated accusations on the issue remind us of a, probably apocryphal, story told about Lyndon Johnson.

The story goes that Johnson told an aide to spread rumors that a political opponent of his was sleeping with barnyard animals. The aide replied, "You want me to tell constituents that the man is a pigfucker? No one's going to believe that." Johnson's reply was, "Of course no one's gonna believe it. I just wanna make the motherfucker *deny* it."

5) The second development was an admission by Open Source leader Bruce Perens that UNIX System V code (owned by SCO) is, in fact, in Linux, and it shouldn’t be there. Mr Perens stated that there is “an error in the Linux developer’s process” which allowed Unix System V code that “didn’t belong in Linux” to end up in the Linux kernel (source: ComputerWire, August 25, 2003). Mr Perens continued with a string of arguments to justify the “error in the Linux developer’s process.” However, nothing can change the fact that a Linux developer on the payroll of Silicon Graphics stripped copyright attributions from copyrighted System V code that was licensed to Silicon Graphics under strict conditions of use, and then contributed that source code to Linux as though it was clean code owned and controlled by SGI. This is a clear violation of SGI’s contract and copyright obligations to SCO. We are currently working to try and resolve these issues with SGI.

Response to Paragraph 5:

The code you refer to has been traced back to Dennis Ritchie and Ken Thompson. It far precedes the development of System V, the *only* Unix to which SCO can conceivably claim any rights. This also illustrates a major problem with SCO's claims to "ownership" of Unix. The Unix System V source code is itself derivative of previous Unixes. Whether or not SCO's system for identifying similar and "obfuscated" code in Linux is reliable, and there are very strong doubts in the community about that as well, the system you are using makes no attempt to verify the provenance of the code. So far, SCO has yet to publicly identify a single snippet of code that has been both copied into Linux, and verified to have originated in System V.

You have also taken Mr. Peren's statements completely and egregiously out of context. For the record, the quote comes from his analysis of the code snippets presented at SCOForum, and the full quote is: "In this case, there was an error in the Linux developer's process (at SGI), and we lucked out that it wasn't worse. It turns out that we have a legal right to use the code in question, but it doesn't belong in Linux and has been removed."

In other words, the code in question has been released, by Caldera among others, interestingly enough, for use in open source projects, and does not illegally infringe on SCO's intellectual property. The statement that it does not belong in Linux is because there was no necessity to support the hardware platform for which is was written and the code itself is "ugly" in the sense that it is poorly written by today's standards, and does not fit the coding style of Linux.

"Nothing can change the fact that a Linux developer on the payroll of Silicon Graphics stripped copyright attributions from copyrighted System V code..." Nothing, except, inconveniently, that it is not a fact. The fact is that SGI did extensive due diligence before contributing any code to Linux, and the code in question long precedes the development of Unix System V.

6) This improper contribution of Unix code by SGI into Linux is one small example that reveals fundamental structural flaws in the Linux development process. In fact, this issue goes to the very heart of whether Open Source can be trusted as a development model for enterprise computing software. The intellectual property roots of Linux are obviously flawed at a systemic level under the current model. To date, we claim that more than one million lines of Unix System V protected code have been contributed to Linux through this model. The flaws inherent in the Linux process must be openly addressed and fixed.

Response to Paragraph 6:

"This improper contribution of Unix code by SGI into Linux..." As this statement has already been refuted in response to the previous paragraph, no further comment on it is necessary. Your further observations regarding the "structural" and "systemic" "flaws in the Linux development process" relying on this incorrect "fact" are also refuted.

Your claim that over "one million lines of Unix System V protected code have been contributed to Linux" is, as you know, strongly contested by the Linux community in general, and in court by Red Hat and IBM. The SCOForum presentation strongly suggests that this number was determined by simply adding up all the lines of code contributed by System V licensees without regard for the provenance of the code they contributed or the due diligence they practiced before releasing it.

7) At a minimum, IP sources should be checked to assure that copyright contributors have the authority to transfer copyrights in the code contributed to Open Source. This is just basic due diligence that governs every other part of corporate dealings. Rather than defend the “don’t ask, don’t tell” Linux intellectual property policy that caused the SCO v IBM case, the Open Source community should focus on customers’ needs. The Open Source community should assure that Open Source software has a solid intellectual property foundation that can give confidence to end users. I respectfully suggest to Open Source developers that this is a far better use of your collective resources and abilities than to defend and justify flawed intellectual property policies that are out of sync with the needs of enterprise computing customers.

Response to Paragraph 7:

"At a minimum, IP sources should be checked to assure that copyright contributors have the authority to transfer copyrights in the code contributed to Open Source."

They are. The Linux kernel is built and maintained by some of the best and most experienced coders in the world. Code contributions are regularly debated in the Linux Kernel Mailing List (henceforth LKML). If none of the coders object to the insertion of a particular piece of code in the kernel, it is, and can be safely assumed, that the kernel contributors recognize it as either original or legally unencumbered. A good example is the Read, Copy, Update module (RCU) which SCO has consistently claimed violates their IP rights. The insertion of this code into the Linux kernel source base was debated on the LKML and it was not accepted until IBM proved its ownership of the code and delivered a hard copy patent agreement allowing it to be released under the GPL.

There is no "don't ask, don't tell" policy amongst the Linus kernel contributors. The due diligence practiced by them far exceeds the standard level of diligence generally practiced in the industry. The source code is also freely available, allowing anyone to verify whether the code is infringing on their copyrights or patents, which provides a further diligence check on the code. You know this well, for your abuse of this privilege would not otherwise have been possible. And, in the unlikely event that SCO actually does provide evidence that code originating in Unix System V has been copied into Linux, all you will have proved is that the system does indeed work.

8) I believe that the Open Source software model is at a critical stage of development. The Open Source community has its roots in counter-cultural ideals – the notion of “Hackers” against Big Business – but because of recent advances in Linux, the community now has the opportunity to develop software for mainstream American corporations and other global companies. If the Open Source community wants its products to be accepted by enterprise companies, the community itself must follow the rules and procedures that govern mainstream society. This is what global corporations will require. And it is these customers who will determine the ultimate fate of Open Source – not SCO, not IBM, and not Open Source leaders.

Response to Paragraph 8:

"The Open Source community has its roots in counter-cultural ideals..."

As noted above, in response to paragraph 2, the open source community's ideals are rooted in mainstream academic and research practice. While I profess to be socially liberal and fiscally moderate, the open source community's political and social ideals run the gamut from libertarian to anarchist, and conservative to liberal. Many have become part of the open source community because they believe the process advocated within it constitutes the best way to do business within the technical community. There is no doubt within the community that the creation of software is undergoing a commodification process. We believe that the best response is to participate in that process, which enables the quickest advancement of technical excellence.

"If the Open Source community wants its products to be accepted by enterprise companies..."

It is already accepted by the enterprise companies. Deal with it. Try to understand it and understand why.

"... the community itself must follow the rules and procedures that govern mainstream society."

See the response to paragraph 7. You are repeating yourself.

"This is what global corporations will require. And it is these customers who will determine the ultimate fate of Open Source..."

A statement that we can both agree on. And the fate being determined for open source appears to be that of rapidly accelerating adoption.

9) Some enterprise customers have accepted Open Source because IBM has put its name behind it. However, IBM and other Linux vendors are reportedly unwilling to provide intellectual property warranties to their customers. This means that Linux end users must take a hard look at the intellectual property underpinnings of Open Source products and at the GPL (GNU General Public License) licensing model itself.

Response to Paragraph 9:

Most enterprise customers have accepted Open Source because unreasonable licensing obligations, and because Linux has proven to be more robust than most proprietary Unixes. For instance, Compaq switched to Linux on its internal print servers when, after a blackout, its Linux servers came back up without any administrative interaction; Compaq's Solaris print servers did not.

"...Linux end users must take a hard look at the intellectual property underpinnings of Open Source products and at the GPL (GNU General Public License) licensing model itself."

Yes, let's take a "hard look" at the GPL. The GPL grants end-users the ability to do anything they want with GPL'd code without restriction except distribute it. This means they can modify it, put it on as many machines as they want, hell, they can even copy the code to CD's and throw a big GPL Bonfire Party, local fire code permitting.

What they can't do is *distribute* it without restriction. This is the case with any copyrighted work. The "price" (speaking metaphorically) is that if original or modified GPL code is distributed, it must be distributed on the same terms under which it was received, the GPL. Copyrights must be preserved. If you have modified the code, copyright for your modifications must be included. Source code must be available. Any warranty disclaimers must be preserved. A copy of the GPL must be included. The end-user must be granted all the same rights to do whatever they want with the code without restriction, except distribute it. To distribute it, they must do so under the terms of the GPL. Repeat recursively.

Distributing GPL'd code under conditions which do not meet its requirements violates the copyrights of all other contributors to the GPL'd code.

As per Section 4 of the GPL: "You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License..."

Your attempts to sublicense SCO's alleged intellectual property in Linux violates section 4 of the GPL. Your continued distribution of the Linux kernel via your ftp site violates the copyright of all other contributors to the kernel.

It seems that a "hard look" at the GPL leaves SCO in violation of copyright and in breach of the GPL's distribution terms.

It also appears that the only reason to object to the GPL is if SCO wishes to distribute GPL'd code without crediting the authors of said code, or to do so without regard for the conditions under which the authors have chosen to license it.

10) If the Open Source community wants to develop products for enterprise corporations, it must respect and follow the rule of law. These rules include contracts, copyrights and other intellectual property laws. For several months SCO has been involved in a contentious legal case that we filed against IBM. What are the underlying intellectual property principles that have put SCO in a strong position in this hotly debated legal case? I’d summarize them in this way:

Response to Paragraph 10:

"If the Open Source community wants to develop products for enterprise corporations, it must respect and follow the rule of law."

They do.

"These rules include contracts,..."

It is unreasonable to hold the open source community liable for violations of contracts to which they are not a party and are not privy. Your assertions to the contrary are legally frivolous.

"copyrights,..."

The Linux, Open Source, and Free Software communities all have a high regard for copyright. Indeed, they must. Their own contributions are not protectable under the GPL unless they copyright their own code. Your continued assertions that they do not respect copyright are unreasonable, frivolous, fly in the face of their own needs to respect copyright, and in this case, are slanderous.

"... and other intellectual property laws."

The other intellectual property laws that would concern us here are trademark and patent.

As far as patent law goes, SCO has made no claims of patent violation in court, for the simple reason that SCO owns no Unix related patents. Therefore, in relation to SCO's claims, patents are a moot issue. SCO's claims in interviews that Linux is violating its patents are libelous, since, again, SCO has no Unix related patents to violate.

The Unix trademark, and the specification under which products can be advertised under the Unix trademark, are both owned by The Open Group. Again, SCO has no claims, and has filed no claims, under trademark law. SCO's repeated public statements that it "owns Unix" or is the "owner of Unix", however, are arguably violations of The Open Group's trademarks, especially since the only part of any Unix SCO can defensibly, and only potentially, lay claim to is the System V source code.

"What are the underlying intellectual property principles that have put SCO in a strong position in this hotly debated legal case?"

SCO is not in a strong position.

A) SCO does not "own" Unix; it merely, and debatably, owns tHe Unix System V source code and the licensing contracts related to it. In the BSD case, the presiding judge ruled that ATT was unlikely to be able to defend its copyrights. Nothing has occurred in the past 10 years to make those copyrights more defensible and much has occurred to make them even less defensible. Any attempt by SCO to defend such copyright is likely to end with the entirety of Unix System V source code being declared public domain. Perhaps this is why you have not filed for any copyright violations in the IBM or Red Hat suits yet, Mr. McBride?

B) SCO's right to terminate IBM's Unix System V license, and by extension AIX and Dynix, have been contested by IBM and a third party to the controlling contract, Novell.

C) IBM's contract grants it a "perpetual" and "irrevocable" license.

D) SCO has made no attempt to mitigate its alleged damages by identifying the allegedly infringing code portions under reasonable conditions. No, Mr. McBride, the NDA under which SCO allows perusal of the allegedly infringing code is not reasonable.

E) SCO's lack of mitigatory action leaves it in violation of its contractual obligation to IBM to exert "mutual good faith best efforts to resolve any alleged breach" (ATT-IBM Sideletter agreement, section 5).

F) SCO must defend itself against patent violations claimed by IBM in its counter-suit.

G) SCO's release of "ancient Unixes", its distribution of Linux under the GPL, and its historical abrogation of due diligence activities that could have identified any allegedly infringing code *years* earlier, leave it with "unclean hands"

H) The code base in question, Unix System V, is itself derived from previous Unixes that have since been made available under open source licenses, leaving very little System V code protectable. Much of the System V codebase was also illegally misappropriated from BSD Unix, as discovered during the BSD case. Unixware's Linux Kernel Personality includes uncredited and misappropriated code from Linux, violating the copyrights of the kernel contributors and the GPL.

In short, SCO is not in a strong position.

11) “Fair use” applies to educational, public service and related applications and does not justify commercial misappropriation. Books and Internet sites intended and authorized for the purpose of teaching and other non-commercial use cannot be copied for commercial use. We believe that some of the SCO software code that has ended up in the Linux operating system got there through this route. This violates our intellectual property rights.

Response to Paragraph 11:

The "Fair Use" doctrine applies only in cases of copyright violation. Again, SCO has filed no claims yet of copyright violation. Bringing it up in the context of the IBM case is misleading and manipulative.

Furthermore, your explanation of the "Fair Use" doctrine is completely incorrect. "Fair USe" applies to any quotation and/or use of copyrighted that does not unduly infringe the copyright holder's rights. It is not restricted to "educational, public service, and and related applications". Code taught in schools is effectively public domain -- students cannot be held liable for contracts they know nothing about and are not party to. Any code that ended up in Linux through this route is either public domain, or under an open source license. It cannot violate your intellectual property rights, since you have none under these conditions.

12) Copyright attributions protect ownership and attribution rights –they cannot simply be changed or stripped away. This is how copyright owners maintain control of their legal rights and prevent unauthorized transfer of ownership. Our proprietary software code has been copied into Linux by people who simply stripped off SCO’s copyright notice or contributed derivative works in violation of our intellectual property rights. This is improper.

Response to Paragraph 12:

Again, you have not filed for any copyright violations in court. Perhaps you are preparing the ground for adding such charges to the responses due 9/25 in the Red Hat and IBM cases? Or perhaps you never will file any copyright charges, knowing that ATT already found out the hard way that if they tried to defend their copyrights in court, they would come under considerable risk of having those copyrights placed under public domain?

In any case, your accusations that ATT, SCO, or Caldera code has been stripped of copyrights and inserted into Linux is slanderous and libelous until you file for copyright violations in court and successfully defend those copyrights.

13) In copyright law, ownership cannot be transferred without express, written authority of a copyright holder. Some have claimed that, because SCO software code was present in software distributed under the GPL, SCO has forfeited its rights to this code. Not so – SCO never gave permission, or granted rights, for this to happen.

Response to Paragraph 13:

You are still being misleading about the status of your copyright claims, since you have not filed for any copyright violations anywhere. Furthermore, any claim that SCO didn't realize for 3 years that it was releasing it's own code under the GPL is likely to be laughed out of court. You had the code, you could compare the System V and Linux code bases, SCO previously featured in its public statements its intent to combine the Unix and Linux code bases, and now you claim you didn't know?

Mr. McBride, the only way to defend this in court is to tell the judge that you are a complete fucking idiot, and that all previous mangement was equally incompetent. Even if a court buys that explanation, I hardly think they'll reward SCO's utter stupidity to the tune of 3 billion dollars. It's far more likely that they will require SCO to pay IBM's court costs instead.

14) Transfer of copyright ownership without express written authority of all proper parties is null and void.

Response to Paragraph 14:

And distributing your own product under an open source license, then claiming that you didn't know it was your own product, you thought it was someone else's, makes you look like a jackass. I suspect it will provide evidence for a class action suit on the part of your shareholders.

I mean, Mr. McBride, do you really have no idea how clueless these arguments make you look?

15) Use of derivative rights in copyrighted material is defined by the scope of a license grant. An authorized derivative work may not be used beyond the scope of a license grant. License grants regarding derivative works vary from license to license – some are broad and some are narrow. In other words, the license itself defines the scope of permissive use, and licensees agree to be bound by that definition. One reason SCO sued IBM is due to our assertions that IBM has violated the terms of the specific IBM/SCO license agreement through its handling of derivative works. We believe our evidence is compelling on this issue.

Response to Paragraph 15:

Unless otherwise defined within the contract, derivative works are understood in case law to be works that include code from the derived work. Just because a program or portion of code provides functionality within a work does not mean it is a "derived" work. There is no definition of derived works in the contracts made publicly available at SCO's web site, and also by the US Federal Court System through PACER, on which to base such claims. Thus, your evidence so far is not compelling.

In fact, the evidence you have made publicly available include the ATT-IBM sideletter agreement, in Section 2 of which ATT grants IBM "ownership" of all works derived by or for IBM. In other words, rather than being compelling, your own evidentiary exhibits contradict your claim.

16) The copyright rules that underlie SCO’s case are not disputable. They provide a solid foundation for any software development model, including Open Source. Rather than ignore or challenge copyright laws, Open Source developers will advance their cause by respecting the rules of law that built our society into what it is today. This is the primary path towards giving enterprise companies the assurance they need to accept Open Source products at the core of their business infrastructure. Customers need to know that Open Source is legal and stable.

Response to Paragraph 16:

"The copyright rules that underlie SCO’s case are not disputable."

So far, SCO's case has been based on contract law, with nary a copyright claim in sight. Therefore, there are no "copyright rules" underlying SCO's case at all, much less any to dispute.

The copyright claims SCO has made in press release, public announcements, interviews, and, now, open letter, are based on rules, such as SCO's definition of "derivative work" that are clearly disputable, since they make assertions that are not supported by previous case law, and not supported by the controlling contracts.

17) Finally, it is clear that the Open Source community needs a business model that is sustainable, if it is to grow beyond a part-time avocation into an enterprise-trusted development model. Free Open Source software primarily benefits large vendors, which sell hardware and expensive services that support Linux, but not Linux itself. By providing Open Source software without a warranty, these largest vendors avoid significant costs while increasing their services revenue. Today, that’s the viable Open Source business model. Other Linux companies have already failed and many more are struggling to survive. Few are consistently profitable. It’s time for everyone else in the industry, individuals and small corporations, to under this and to implement our own business model – something that keeps us alive and profitable. In the long term, the financial stability of software vendors and the legality of their software products are more important to enterprise customers than free software. Rather than fight for the right for free software, it’s far more valuable to design a new business model that enhances the stability and trustworthiness of the Open Source community in the eyes of enterprise customers.

Response to Paragraph 17:

"Finally, it is clear that the Open Source community needs a business model that is sustainable, ..."

It's been sustaining itself for 20 years; Linux, for 12 years. The SCO Group has never claimed a profitable quarter until this year, and those profits were due to one-time sales of perpetual licenses to Microsoft and Sun. Where will future revenues for SCO come from, Mr. McBride? It seems that The SCO Group itself needs to find "a business model that is sustainable."

"... if it is to grow beyond a part-time avocation into an enterprise-trusted development model."

It is clearly enterprise-trusted already. Were this not the case, you would be unable to claim that Linux has taken revenue away from SCO.

"Free Open Source software primarily benefits large vendors..."

Funny, but I find it very beneficial to have an operating system that I can legally use for free, that comes with source code so I can make my own modifications if desired, and that allows me to use my system without regard to proprietary end-user license obligations. But, hey, maybe I'm just a freak.

"By providing Open Source software without a warranty, these largest vendors avoid significant costs while increasing their services revenue."

Hmm, well, let's take a look at the warranty provided in Microsoft's End-User License Agreement for Windows XP Home. After all, that's got to be one of the most widely published and accepted warranty agreements in the world, right?

WARRANTY AND SPECIAL PROVISIONS
FOR
THE UNITED STATES OF AMERICA
AND ANY OTHER COUNTRY

LIMITED WARRANTY

LIMITED WARRANTY. Manufacturer warrants that (a) the
SOFTWARE will perform substantially in accordance with the
accompanying written materials for a period of ninety (90)
days from the date of receipt, and (b) any Microsoft hardware
accompanying the SOFTWARE will be free from defects in
materials and workmanship under normal use and service for a
period of one (1) year from the date of receipt. Any implied
warranties on the SOFTWARE and Microsoft hardware are limited
to ninety (90) days and one (1) year, respectively.
Some states/jurisdictions do not allow limitations on duration
of an implied warranty, so the above limitation may not apply to you.

CUSTOMER REMEDIES. Manufacturer's and its suppliers' entire
liability and your exclusive remedy shall be, at
Manufacturer's option, either (a) return of the price paid, or
(b) repair or replacement of the SOFTWARE or hardware that
does not meet this Limited Warranty and which is returned to
Manufacturer with a copy of your receipt. This Limited
Warranty is void if failure of the SOFTWARE or hardware has
resulted from accident, abuse, or misapplication. Any
replacement SOFTWARE or hardware will be warranted for the
remainder of the original warranty period or thirty (30) days,
whichever is longer.

NO OTHER WARRANTIES. To the maximum extent permitted by
applicable law, Manufacturer and its suppliers disclaim all
other warranties, either express or implied, including, but
not limited to implied warranties of merchantability and
fitness for a particular purpose, with regard to the SOFTWARE,
the accompanying written materials, and any accompanying
hardware. This limited warranty gives you specific legal
rights. You may have others which vary from state
/jurisdiction to state/jurisdiction.

NO LIABILITY FOR CONSEQUENTIAL DAMAGES. To
the maximum extent permitted by applicable law, in no event
shall Manufacturer or its suppliers be liable for any damages
whatsoever (including without limitation, special, incidental,
consequential, or indirect damages for personal injury, loss
of business profits, business interruption, loss of business
information, or any other pecuniary loss) arising out of the
use of or inability to use this product, even if Manufacturer
has been advised of the possibility of such damages. In any
case, Manufacturer's and its suppliers' entire liability under
any provision of this agreement shall be limited to the amount
actually paid by you for the SOFTWARE and/or Microsoft
hardware. Because some states/jurisdictions do not allow the
exclusion or limitation of liability for consequential or
incidental damages, the above limitation may not apply to you.

Looks pretty minimal, doesn't it, Mr. McBride? Well, Microsoft is not SCO, to state the obvious. I'm sure SCO provides better warranties. Let's look at the warranties supplied in the SCO License for Intellectual Property in Linux:

7.0 LIMITATION OF WARRANTY

SCO MAKES NO WARRANTIES OF ANY KIND EXPRESSED OR IMPLIED WITH RESPECT TO
ANY SOFTWARE OTHER THAN THE SCO INTELLECTUAL PROPERTY DEFINED BY THIS
AGREEMENT.

SCO WARRANTS THAT IT IS EMPOWERED TO GRANT THE RIGHTS GRANTED HEREIN.
SCO DOES NOT WARRANT THAT THE FUNCTION CONTAINED IN SCO PRODUCT WILL
MEET YOUR REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR
ERROR FREE.

ALL WARRANTIES, TERMS, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND
GUARANTEES WITH RESPECT TO THE SOFTWARE, WHETHER EXPRESS OR IMPLIED,
ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY ANY PARTY OR
OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY OF
NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS) ARE HEREBY
OVERRIDDEN, EXCLUDED AND DISCLAIMED. SOME STATES OR COUNTRIES DO NOT
ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY
NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU
MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE OR COUNTRY TO
COUNTRY.

8.0 LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES WILL SCO OR ITS REPRESENTATIVES BE LIABLE FOR ANY
CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES,
WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON YOUR CLAIMS OR THOSE OF
YOUR CUSTOMERS (INCLUDING BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA,
GOODWILL, PROFITS, USE OF MONEY OR USE OF THE SCO PRODUCTS, INTERRUPTION
IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF
OTHER ASSETS), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED
WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT
LIABILITY IN TORT OR OTHERWISE, EXCEPT ONLY IN THE CASE OF PERSONAL
INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH
LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH SCO MAY INCUR
IN ANY ACTION OR PROCEEDING EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY YOU
TO SCO FOR THE LICENSE OF THE SCO PRODUCT THAT DIRECTLY CAUSED THE
DAMAGE.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF EXCLUSION OF LIABILITY
FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE
LIMITATION MAY NOT APPLY TO YOU.

Hmm, "SCO makes no warranties of any kind..."? Just what are purchasers of the SCO IP license getting for their money, Mr. McBride?

Anyway, it looks like the GPL's warranty policy is right in line with industry standards, Microsoft and SCO included.

I make no further comment on the rest of the statements in paragraph 17, as the refutation of the preceding distortions of fact and outright lies render the rest of it clearly hypocritical and in no further need of refutation. Besides, it's late and I want to get to the end of this.

18) A sustainable business model for software development can be built only on an intellectual property foundation. I invite the Open Source community to explore these possibilities for your own benefit within an Open Source model. Further, the SCO Group is open to ideas of working with the Open Source community to monetize software technology and its underlying intellectual property for all contributors, not just SCO.

Response to Paragraph 18:

"A sustainable business model for software development can be built only on an intellectual property foundation."

Such as the GPL's foundation on copyright law.

"I invite the Open Source community to explore these possibilities for your own benefit within an Open Source model."

We've been doing so for 20 years. We invite you, Mr. McBride, to explore our principles and ideas yourself, with an open mind and without the defamatory comments denigrating the open source community.

"Further, the SCO Group is open to ideas of working with the Open Source community to monetize software technology and its underlying intellectual property for all contributors, not just SCO."

Monetize: 1. To legalize as money 2. To coin into money: for example, to monetize gold 3. to give the character of money to. Random House Unabridged Dictionary, 1967.

Mr. McBride, I suspect that you are simply using the word "monetize" incorrectly. It's become a bad, sloppy, fashion among MBA's in recent years to use it as a synonym for the phrase "make profit from."

But, on the off chance that you chose the word with careful consideration and are using it metaphorically, the Linux, Open Source, and Free Software communities are already "monetizing" software technology. It is "monetized" every time a company saves several thousand dollars on software purchasers that can be used instead to further build the business and/or hire more employees, or share the savings in terms of higher salaries, or greater shareholder profits. It is "monetized" every time an administrator or developer customizes source code to enhance productivity for a company, an option not available under proprietary, closed source, code. It is "monetized" every time a technological enhancement or bug fix is contributed to the wider community, enabling the software to develop quicker pace than any proprietary company could achieve on its own, and saving the company the cost of applying the enhancement or bug fix again whenever it upgrades.

Your failure to grasp this concept, that "monetization" occurs at a faster pace and is shared more equitably under open source, and the GPL in particular, is one of the sorest points of contention between you and the open source community.

19) In the meantime, I will continue to protect SCO’s intellectual property and contractual rights. The process moving forward will not be easy. It is easier for some in the Open Source community to fire off a “rant” than to sit across a negotiation table. But if the Open Source community is to become a software developer for global corporations, respect for intellectual property is not optional – it is mandatory. Working together, there are ways we can make sure this happens.

Response to Paragraph 19:

"In the meantime, I will continue to protect SCO’s intellectual property..."

If you find any, please let us know. We would love to see it. Show it to us, so we can respect your copyrights by removing it from the Linux code base. But as long as you fail to show it to us, without NDA, then forgive us if the only rational response we can have is to ignore you as we would the boy who cried wolf.

"...and contractual rights."

Go to it. Just be sure to confine the remedies to people with whom you actually do have contracts. Seeking remedies from both the people you have contracts with and the end-users is considered "double-dipping", and is generally frowned upon in the courts.

"The process moving forward will not be easy. It is easier for some in the Open Source community to fire off a “rant” than to sit across a negotiation table."

Perhaps. However, if I may raise a counter-point, it would seem that SCO's problem is that the onerousness of SCO's negotiating conditions have made it easier for IBM and Red Hat to fire off claims and counter-claims in court and in response. I suggest to you that SCO may want to reconsider it's own negotiating strategies and conditions.

"But if the Open Source community is to become a software developer for global corporations, respect for intellectual property is not optional – it is mandatory."

Agreed. Perhaps this explains Linux's global success in contrast to SCO's failures.

"Working together, there are ways we can make sure this happens."

Mr. McBride, working together, the Linux community is making sure this happens. They are just doing it without you. Working with you is no longer an option. Your credibility is shot, and no one in the community will enter into a contractual agreement with a partner whose philosophy has been publicly stated to be "Contracts are what you use against those with whom you have relationships."

Best regards to all,

Darl McBride
CEO
The SCO Group

With all truth and sincerity,

John Gabriel
Computer, Networking, and Technical Consultant
Manhattan Borough, New York City
[email protected]

azazel 09/09/03 06:43:40 AM EDT

"It?s time for everyone else in the industry, individuals and small corporations, to under this and to implement our own business model ? something that keeps us alive and profitable."...."Rather than fight for the right for free software, it?s far more valuable to design a new business model ..."

How _dare_ he associate himself with "us"!! That SCUM continues to spread misinformation, then has the GALL to pretend he is on our side and actually wants to work something out for the future of open source???!?!? McBride and the rest of the "pool of sharks" can go to HELL, and I hope that SCO comes down in flames very soon.

Noah F. San Tsorbutz 09/09/03 06:29:53 AM EDT

What is the reputation of LinuxWorld worth? Do you verify anything? This is your publication, not McBride's. You can include comments to refute his FUD. Use your position to make the facts known, instead of providing a soapbox.

McBride says:

"The second development was an admission by Open Source leader Bruce Perens that UNIX System V code (owned by SCO) is, in fact, in Linux, and it shouldn’t be there. Mr Perens stated that there is “an error in the Linux developer’s process” which allowed Unix System V code that “didn’t belong in Linux” to end up in the Linux kernel (source: ComputerWire, August 25, 2003)."

From http://www.perens.com/SCO/SCOSlideShow.html , re. the "error" in the Linux source process:

"Slides 10 through 14 show memory allocation functions from Unix System V, and their correspondence to very similar material in Linux."

"In this case, there was an error in the Linux developer's process (at SGI), and we lucked out that it wasn't worse. It turns out that we have a legal right to use the code in question, but it doesn't belong in Linux and has been removed.

These slides have several C syntax errors and would never compile. So, they don't quite represent any source code in Linux. But we've found the code they refer to. It is included in code copyrighed by AT&T and released as Open Source under the BSD license by Caldera, the company that now calls itself SCO. The Linux developers have a legal right to make use of the code under that license. No violation of SCO's copyright or trade secrets is taking place."

Wouldn't it be wonderful if McBride showed anything approaching the simple honesty that Bruce displays?

So, this code really was SystemV code, except that SCO thenselves (back when they were known as Caldera) released this code under BSD license. Let me repeat, SCO released this code under BSD license. The entire "error" in the process consists of missing source attribution. This is a clerical glitch, not IP infringement. BTW, the code has been removed from Linux in current development source v.2.5, and therefore it is absent in soon to be released v.2.6.

McBride says:

"However, nothing can change the fact that a Linux developer on the payroll of Silicon Graphics stripped copyright attributions from copyrighted System V code that was licensed to Silicon Graphics under strict conditions of use, and then contributed that source code to Linux as though it was clean code owned and controlled by SGI."

Nothing can change the fact that SCO (Caldera) released the code under BSD license. Nothing can change the fact that Ransom Love, while CEO of Caldera repeatedly and publicly stated that the goal and intention of the SCO acquisition was to merge SCO into Linux. Maybe McBride can't accept or believe this, but it is well and clearly documented.

Re. the second code example, the BPF (Berkely Packet Filter) , http://www.infoworld.com/article/03/08/20/HNscomoreflaws_1.html :

'The obfuscated sample, which contains networking software, could have been legitimately copied in the Linux source code, because it has been released under a BSD license, Perens said.

But the code was created from scratch and not copied from any version of Unix, according to the Linux developer who contributed it.

Jay Schulist, a senior software engineer with Pleasanton, California's Bivio Networks says he wrote the 500 lines of code in 1997 as part of a volunteer project for the Stevens Point Area Catholic Schools in Wisconsin. "I used it for helping a local school district in my home town to connect their old Apple Macintosh machines to the Internet," he said.

Schulist wrote the code, based on the publicly available specifications created by Lawrence Berkeley Labs, he said. He has never seen the AT&T source code, he added.'

McBride has made blatently false accusations. This has got to be illegal, even in the good ol' USA.

To reply, remove what SCO does from the address.

Ben Thorp 09/09/03 06:12:46 AM EDT

OK - let me get this right. Bruce Perens admits that SGI submitted SysV code into Linux. So why the hell are you sueing IBM, but not SGI? I'd hazard some answers, but they would only be the obvious ones.

I'm sorry about the DDoS attack you received. I don't think that action like that should be taken in any instance. However, it is no worse than the 'Denial of Service' that you have pushed by removing IBMs AIX license - you are trying to be judge and jury in one go. You aren't the law - the law should decide if you are right. And let's face it, that's not gonna happen.

Thomas Althoff 09/09/03 05:03:53 AM EDT

DOS Attack? When a lawsuit is initiated that causes companies to divert resources from customer support to legal defense as well as threaten users for doing business with doing business with those companies... THERE is the REAL denial of service generated not from within the OS community but by SCO themselves.

Xenix..Xenix...Xenix
It came from S.C.O.
How many lines were lifted?
Why heaven only knows!

Mark Turner 09/09/03 04:53:18 AM EDT

I hate to act a little immature about this but I was in the bathroom today and I ran out of toilet paper, so I thought "This would be the perfect time for SCO's license to actually serve a noble purpose" But alas, they havnt sent me one. I really want one, really bad. Im gonna put it in my wallet close to my bum so that SCO will never forget how I feel about them and what their pretty waste of paper has in store for it.

Charley Johns 09/09/03 04:45:09 AM EDT

Illegal attacks?

Can you spell PROJECTION..?

Tzar Kastik 09/09/03 03:40:16 AM EDT

I love this bit: "the SCO Group is open to ideas of working with the Open Source community"

Translation: "After years of working with the open source community, we decided to stab you in the back to boost our stock price. Once we have our extortion money, lets all be friends again (then we can do the same thing again in a few years, muhahahahahaha)."

Oh, and Mr McBribe, say hi to Bill for me when you go to collect your next donation.

JulsE 09/09/03 03:17:46 AM EDT

Mr McBride,

Before you have the audacity to send out a letter to the Open Source community, please remove all Open Source products and Open source code from SCO Unix distributions so at least you are not a complete hypocrite when you talk to us.

UglyMike 09/09/03 03:09:30 AM EDT

Norm put it best in his mail of sept 8th (actually a cut and paste from Slasdot)
It clearly proved (with controllable sources) that Darl is a bare-faced LIAR and that this so-called second development NEVER HAPPENED!!

I think your journalistic integrity is on the line if you take no follow up action on this (ie lambast that lying SOB in a follow up article. Journalists have time and time again presented SCOs wild gyrations as fact. Please do some background checks on SCOs allegations and blow these dudes out of the water!!
They claim ownership of Unix wholesale while they only have ownership of srv4 and later, their claim of scope of derivative works is dubious, they NEVER offered a single line of proof for the alledged line-by-line copying in Linux and when they tried, it was quickly showned to be without merit (ie LIES) Come on guys, this article is not journalism, this is SCO PR!!

Dr Dre 09/09/03 03:03:07 AM EDT

Hi,

You've got critics on the open source development model and how copyrighted code can easily be infiltrated.
Are you a complete hypocrite? what about the reverse action? what about all the open source code that gets stolen and infiltrates proprietary software without any acrreditation whatsoever? and we can't even check it since the source code is private.

Anonymous Coward 09/09/03 01:57:41 AM EDT

Can it, Darl. You're talking out of your ass. I'd tell you to go provide lawyer services for people who actually need it, but you're probably going to get your license revoked after this one. Ass.

Juan Penguinista 09/09/03 12:23:44 AM EDT

My point before about the implicit offer is to highlight how Darl's sole focus is on monetizing Linux. He is demanding of the OSS community a way for him to turn Linux into a corporate asset. He must realize how the GPL has his hands tied, and there's not a single point of ownership to attack. Hence he wants contrive a way to do the unthinkable, directly bill users for what he thinks ought to be his. He doesn't seek exclusive, sole ownership but wants a big piece of whatever corporate revenues are generated via Linux deployments, and to make it generate more revenues. He fails to see the entire point of GPL licensed Gnu/Linux is to be and remain an OS platform owned by the code authors and user community, not corporate owned. Linux is a community model, not a business model. Distribution is to remain 'free' or minimal expense basis, which for Darl is what is so destructive. The business instinct is that software this good can't possibly be free, or be allowed to be free. Business models can embrace the use of Linux but not violate the GPL. Darl tries to claim Linux is derived from Unix in such a way as somewhere, sometime, some license must have been violated. The Linux genie was never in the Unix bottle, it came to be outside of it, parallels and improves upon Unix, but cannot be stuffed back in to it, no matter how much his PR and legal staff huff and puff.

Nick Bridge 09/09/03 12:22:56 AM EDT

Mr McBride:
"In copyright law, ownership cannot be transferred without express, written authority of a copyright holder. Some have claimed that, because SCO software code was present in software distributed under the GPL, SCO has forfeited its rights to this code. Not so – SCO never gave permission, or granted rights, for this to happen."
I haven't heard any suggestion that "ownership" of any code has changed. The case put forth was that by distibuting the software under the General Purpose License, SCO is allowing the further distribution of said software under the terms of the license.
When SCO distributes software under the GPL they give the licensee certain terms - allowing them, for instance, to redistibute said software, or to modify it, if they please.
Even if SCO proves they own some code within Linux or for that matter any software they have willingly distributed under the GPL (such as GNU), they have still given license to copy/modify/redistibute said software.
As for using the software, that is another issue...

Garion Sikora 09/09/03 12:21:37 AM EDT

Darl would be nothing if he weren't being fed money by the vermin at MS. Bill Gates, the greedy bastard he is, is behind all of this. These two probably stand around with there pants down admiring each other's equipment while everybody else is rolling on the floor laughing.

What kind of a name is Darl anyway. Did his mother even love him? Maybe that is why he is such a crackhead. At least he must be smoking crack, how else could he come up such a hairbrained scheme. That's it, he has a hair brain or is that hair lip?

I have grown to hate SCO more and more, day by day. Socialism is the scourge of the world but lying, cheating, theives in the business world are the bottom feeders of all time. I hope all of you who hold SCO stock lose you shirts, cars and families over this. Bill me too, I WILL file a complaint of mail fraud and all the other possible crimes purpetrated scum at SCO.

Gary Cameron 09/09/03 12:21:37 AM EDT

Dear Mr. McBride:

Since you have such great respect for the intellectual property of others, will you cease and desist distribution of all SCO products which violate the four IBM patents mentioned in their countersuit?

Also, since you appear disagree with the open source business and licencing models, perhaps you might practice what you preach, and cease further use of all open source software including (but not limited to) Samba, gcc, and the rest of the Linux kernel not claimed by yourself.

David Forden 09/08/03 11:37:00 PM EDT

Why don't Darl and his team have a close look at:
Free BSD
Windows (all varieties)
Other Unix variants...

Whilst at it he could also look a bit harder at
SCO OpenServer and Unixware

I am sure that they would turn up some very interesting items. :-)

fuzzywzhe 09/08/03 11:36:00 PM EDT

"After reading the last couple of paragraphs I think I see something new. Does anybody else notice that SCO (Darl) is practically offering to share or negotiate the terms of monetization with the Open Source community? Is anyone else seeing this invitation to sell out or am I loco?"

Does it even matter? Who cares what Darl is offering?

This unprincipled thief has called Linux developers everything from thieves to terrorists and has libelled and slandered thousands of volunteers. He's trying to steal code that neither he nor his company took part in having created, and is currently attempting to extort and blackmail all Linux users. He's nothing but a thug. He's even repeated several lies in this current article. I wouldn't trust him to hold my place in line at the grocery store.

It is too late to try to make nice. He made his bed, now he can lie in it.

The Vultus acquisition was a way to defraud his OWN INVESTORS so that Canopy could get back their money on a bad investment, Caldera is CURRENTLY under investigation by the SEC for questionable practices during their IPO and they are facing 3 lawsuits, if you don't include the ongoing one in Germany.

Darl McBride will get everything he deserves, and hopefully Canopy will as well.

Juan Penguinista 09/08/03 11:06:13 PM EDT

After reading the last couple of paragraphs I think I see something new. Does anybody else notice that SCO (Darl) is practically offering to share or negotiate the terms of monetization with the Open Source community? Is anyone else seeing this invitation to sell out or am I loco?

Anonymous Coward 09/08/03 11:04:55 PM EDT

From a PR perspective this is an admission that he is on the back foot.

Jim Wierzba 09/08/03 10:35:51 PM EDT

SCO’s Mr. McBride is begging many questions. I want to bring up just one. The open source community is not only a group using GPL to organize the distribution of their work. They are a community of authors. Many members of this community not only authored open source code, they are the authors of the original code now traded by companies and individuals only concerned with a quick dollar.

The training and education requirements of code authors are long, detailed, and demanding. Companies like SCO often will only offer code authors short-term employment. In SCO’s pleading a short-term employment with them is translated to mean that the authors have lost the right to use constructs learned and developed during self-study and algorithmic inspection. By SCO’s rules we can never use “==” again.

I only wish that I could start refusing to use SCO products. But I have not seen a SCO label in years. I am sure it will never be on my to buy list.

Truth Detector 09/08/03 10:29:44 PM EDT

There is no greater proof then this rhetoric from Mr. McBride that he and his executive staff have finally realized what has been obvious to many outsiders for a long time. SCO is a failing company on a steady unstoppable course to their final destination, bankruptcy and liquidation.

The claims made by Mr. McBride are so utterly preposterous that it is beyond doubt that even he knows they are complete B as in B, S as in S. Additionally, even someone with the limited intellectual adeptness of Mr. McBride would even understand that this position constitutes a "last stand" for the company. The one remaining chance to survive, and it is legal allegations based on pure fiction.

Yes, one thing is clear. Everyone, including the executive team at SCO, knows that this company is most certainly facing its demise. Please take it like men and go out quietly with dignity.

Good Bye SCO and Mr. McBride.

D. Jeff Dionne 09/08/03 10:21:56 PM EDT

1. What a member of a community does is the responsibility of that
individual. The actions of one person are cannot be used to
stigmatize a group (or any others at all). That is illegal.

2. There is considerable evidence that there was in fact no DOS
of SCO's machines. If this proves to be the case, SCO will have
to be held accountable for it's allegations.

3. SGI is on record that it's legal team went through the xfs sources
to approve the release. The code in question is clean according to this
audit... if it is not then that is a mistake. In any case, it was corrected,
and the (appropriate, responsible) proceedures followed to insure that
intellectual property of others was protected is a matter of public record.
Stated another way, it can be clearly shown that the accepted industry
process (code audit) was carried out and that it was carred out to
respect the rights and property of others.

4. Making allegations of not respecting intellectual property comes
(at least) close to defimation. In light of 3, and knowing that SCO
was a party (as all enterprise linux vendors were) to the very public
work SGI did to contribute xfs to Linux, one has to hold SCO
accountable for knowingly making such false and damaging statements.

5. If there is code (for instance) in the SMP support which is SCO's
property, that code is limited to the code itself. There is no legal
theory that can be presented that will stand scrutiny that will allow you
to claim 1m lines of code derived from it. Put another way, _calling_
a function cannot make the work that calls it a derived work in the
general case or all programs would be a derived work of the
platform they run on.

6. Open Source and Free Software are not a business models. They
process and philosophy which is used to generate software for the
benefit of everyone. Stated another way, they are designed to make
the benefit of the development effort accrue to the public.

7. There is no such thing as "Free Open Source" The terms
"Free Software" and "Open Source" are valid terms, however
they are not interchangeable.

8. SCO spent many years as a member of the Open Source
community. It knows that the community hold property and
the law in high regard and respects those laws. SCO also
knows that the GPL relies on copyright. SCO knows this because
lawers for another Canopy company examined the foundations
of the GPL in depth and also offered GPL indemnity. This is known
to Blake Stowell, who was involved in that effort.

9. If the Open Source movement is based on anti-establisment
principals, SCO must also be based on them because it was one
of the first companies to be an "Open Source" company. It
contributed funding and engineering to the development of, and is
partly responsible for, the state of the Open Source movement today.

What SCO is doing is illegal. In the case of this letter, you have
come very close to defaming myself and other Linux developers.
Seek legal advice before posting such things, we will hold you
accountable.

Nathan Hand 09/08/03 10:21:43 PM EDT

"At a minimum, IP sources should be checked to assure that copyright contributors have the authority to transfer copyrights in the code contributed to Open Source. This is just basic due diligence that governs every other part of corporate dealings."

SCO continues to allow Linux 2.4 to be downloaded from their website. They claim that the GPL does not apply because they were unaware that SYSV code was (allegedly) contained within Linux. This means they didn't even read the code that they were selling and distributing for several years. Yet they have the nerve to complain about open-source developers not showing due diligence?!

Besides the outright lie - Linux maintainers do vette every submission and anonymous contributions are discarded - it's hypocrisy for SCO to claim innocence when they distributed Linux without checking the code first, but then accuse the open-source developers of not having due diligence.

N. Abreu 09/08/03 10:21:20 PM EDT

Lets get a couple of things straight. First, Denial of Service (DDoS) attacks are wrong. I don't think there is anyone in the Open Source Community, that will say otherwise. The Open Source Community does not want, nor will it take any part in such actions, or any actions that will violate, or infringe, in anyones copyrights, IP, contract obligations and/or freedom of speech.

If any code is in violation, then the community will replace it with a GPL, or BSD, “original” (or properly contributed) substitute of is own. This is the moral thing to do, and it is what the community will do, if any line of code is prove to be improperly contributed to the Linux development.

I also believe that most of the community really do not care about SCO “IBM/SCO license agreement “ problems, or any allegedly unauthorized “Unix System V “ code contributions by SGI . By all means, go at it, and prove your case in a court of law, if you have a case. The community simply wants SCO to stop acting (and talking), as if Linux were an exact copy of SCO “Unix System V”. It is not. Hundreds of professionals worldwide, have volunteer hundreds of hours, to develop a clean, free implementation of Unix. Plus, many institutions and companies have properly contributed a lot of code to the system.

SCO legal battles will not stop Linux development. Linux is constantly evolving. It is slowly becoming the standard for any future Unix like systems, and even the universal replacement for all current proprietary Unix systems. SCO will not be the owner of Linux.

JonB 09/08/03 10:00:36 PM EDT

It was a nice lead in with the DDoS attack issue to establish that SCO was the wronged party. However, there has been little concrete evidence to confirm the fact that an attack did take place, and certainly no progression towards a criminal prosecution. In fact, there appears to be no attempt to identify the perpetrator. Let me present just one source of analysis on the pattern of unavailability for the SCO site - http://linux-universe.com/modules/newbb/viewtopic.php?topic_id=102&forum=3. Since the site in question appeared to be housed at the Center7 facilities and other sites from the same facilities were available, it does cast some doubt as to whether a DDoS attack had occurred. This is aside from other indications that during the weekend in question, the site was reported to be undergoing some upgrades and changes.

As for your assertion, Mr McBride that "rather than fight for the right for free software, it?s far more valuable to design a new business model that enhances the stability and trustworthiness of the Open Source community in the eyes of enterprise customers", let me contend that rather than fight for the right for free software, it?s far more valuable to be trustworthy and open in the eyes of enterprise customers.Attacking the Open Source community on its principles, I suggest, is not the best way of opening negotiations and the path to conciliation will be long.

You have no leverage to sue for peace and your terms of offer to monetize software technology will be repugnant to some. Software development is an act of creation from the mind and some will create for the joy of creating. Monetizing software technology is not necessarily for the benefit of the developer is it? Otherwise SCO would actually be a patron to software development rather than a hoarder of old ideas.

D.C. Lane 09/08/03 09:53:05 PM EDT

Mr. SCO CEO,

I worked in a shop where There was SCO loaded on a PC. It was Difficult and costly to maintain, needless to say I was not able to loan and run SCU unix for my self. My When I bough My first Linux I was able to load and run linux with a few bumps in the road. None the less I ran linux for web, server, and development.

Where was SCO in the last 5 years. This lawsiut just shows that you where a sleep at the helm.

As for the DDoS, If I knew how did it I would not tell. SCO you missed the ship. Opensource is a movement that challenges the HIGH costs if Software and Venders are running scared. The people that support OpenSource see you SCO as the goofy kid that gets picked last if at all in a pick up game of Baseball and has gone to get the school principcal to force the kids to let him play.
Mr. SCO CEO email me so we can talk, but before you do be ready to answer the question: Where was SCO in the last 6 years. I bought Linux, if I has to spend 1 dollar extra and that went to SCO that would be okay, but at the 11th hour...

COME ON, GET REAL...

ProgrammerMan 09/08/03 09:49:15 PM EDT

Darl, I see little benefit in publishing this letter. It says nothing new and does little or nothing to settle the disputes over the Linux kernel. It would appear to only stroke your ego and allow you to continue to spread false claims in an illegal attempt to scare Linux users into paying protection money for that which you refuse to document or prove.

About the denial of service attacks, this is likely the work of one irresponsible person, if indeed there was really ever an attack. It's rather curious that SCO didn't put out a press release or make any demands that it stop what would seem to be a significant attack. You also cannot demonize the entire open source community for the actions of one vigilante. I would think you'd realize by now that if SCO executives weren't constantly attacking and insulting open source developers in the media with their ongoing campaign of hype and sensationalism, people like this wouldn't have the motivation to do what they do.

Regarding the SGI code, you fail to mention that code improperly being contributed is just as likely to happen in closed source projects. In fact, it may be more likely to happen there since the code is secret and not visible to outsiders, so the temptation to take some code that you don't have the right to use may be stronger. Why would someone be foolish enough to intentionally contribute illegal code to an open source project that the entire world can view when they know the chance of getting caught is significantly higher?

About the flaws you repeatedly claim in the open source development process, there is no practical way to trace the origin of all source code, regardless of whether it's used in open or closed source. I think SCO's (and most software companies') own development process is equally flawed if not more so. There have been claims that there's GPL code in SCO's Linux Kernel Personality Layer. IBM claims you are infringing on at least four of their patents. Microsoft has recently been stung by patent lawsuits for SQL Server and Internet Explorer. There simply is no way to know that a project with millions of lines of code in it is all legal.

The claims of one million lines of infringing code are propsterous and blatant lies and you know it. There are only about 3.4 million lines of code in the entire 2.4.20 kernel. To claim that nearly all the code changes between the 2.2 and 2.4 kernel are illegal defies reality. Similar claims of over 800,000 lines of illegal SMP code are equally false.

I believe you are intentionally including IBM's code in the count, but this is incorrect. Blake Stowell admitted in a MozillaZine interview that IBM is the copyright owner of all the enterprise code they donated to Linux. Unless IBM's contract compels them to transfer the copyrights to SCO and they actually do so, IBM is the owner of this code and you have no right to claim any ability to restrict its use.

About your repeated use of the terms "intellectual property" and "IP," there is no such thing under the law. There are only copyrights, patents, trademarks and trade secrets. Your repeated use of these weasel words is a feeble attempt to make your claims look more credible. You need to state exactly what type of right you are claiming.

You show repeated instances of hypocrisy through your letter, and one of them is the claim that IBM and Linux vendors don't offer a warranty. Does SCO offer such a warranty on their OpenServer, UnixWare, or Sys V source code licenses? I didn't think so. Neither does Microsoft, as witnessed by the Timeline lawsuit over SQL Server. No company, even ones the size of IBM or Microsoft can afford such liability.

You also incorrectly refer to IBM as a Linux vendor, but they do not sell Linux. IBM partners with Red Hat and SuSE for

Then you accuse the open source community of not following the rule of law, yet SCO has violated the rights of others by continuing to distribute the Linux kernel on your site with no license, since if there really is non-GPL code inside, you have no license to distribute it and you are violating copyright law. Any you are accused of patent infringement by IBM.

Regarding distributing of code under the GPL, since you have continued to distribute your own Sys V code in the Linux kernel on your FTP site, even after you were aware that non-GPL code was in there, and there was no notice to people downloading that it wasn't being licensed under the GPL, you have entered into an agreement with your customers and you are bound by that license. You owe your customers a refund if you are going back on your word.

SCO's definition of a derivative work is perveted and intentionally dishonest. Unless IBM has contributed actual lines of code that SCO is the copyright owner, the court will rule that it is not a derivative. There are multiple court precedents on this issue and your deceptive attempts to call something that is not derived a derivative are sure to fail.

Your idea of a sustainable business model is one where SCO can become a parasite that extorts money from people despite the fact that the code is distributed under a license that explicitly forbids sublicensing, collecting royalties and mixing in non-GPL code, all of which SCO plans to do with their Linux license.

Surely you must see that there is 0% chance that SCO can collect royalties for Linux on an ongoing basis. Red Hat and SuSE would be obligated to stop distributing the kernel if you prove that there's non-GPL code inside. The Red Hat lawsuit against you is a noble attempt to get a declaratory judgment that forces you to document any code you believe is illegal so it can be removed, since you repeatedly deny all attempts by the open source community to do what you ask and respect your rights by ceasing any infringement.

You need to take your own advice and respect the rights of others as much as you'd like them to respect your own. Your hostile attitude will only earn you new enemies and make your current enemies re-double their efforts to defeat you.

The overall attempt of your letter to improperly aggrandize the issues far beyond the dispute with IBM's contract and the alleged copyright violations of Sys V code do not add any credibility to your arguments. Your bluster may inflate your sense of self-importance and impress those who lack the knowledge and thinking skills to see it for what it is.

Those of us who are smart enough to see past the smoke and mirrors see a failing company that has resorted to litigation as a substitute for legitimate, honest products and services. A company that filed a frivolous lawsuit full of falsehoods and intentionally deceptive exaggerations. A company that resorts to constant verbal attacks in the media because they know their case has no merit and no chance of success before a judge or jury. A company desperate for a settlement or buyout offer from someone with deep pockets. A company that makes laughable claims that defy all legal precedent such as claiming you can go after end users who aren't violating any laws while you ignore those who are, or claiming that copyright law overrides the GPL and is therefore invalid. A company led by greedy executives who continually lie, change their story and make statements that are hypocritical or defy common sense.

You have dug your own grave by choosing a confrontational approach to these issues. It is your own actions that will end up defeating you and destroying your company. You have chosen to commit corporate suicide and I sincerely hope the SCO and Canopy executives responsible are held personally accountable for their actions.

Developer Dave 09/08/03 09:47:46 PM EDT

Darl says:
"At a minimum, IP sources should be checked to assure that copyright contributors have the authority to transfer copyrights in the code contributed to Open Source. This is just basic due diligence that governs every other part of corporate dealings."

Okay, Darl. Since you're the expert, tell us how you perform this due diligence at SCO. How do you insure that none of your developers are putting my copyrighted code into your products? I have no way of knowing, so I'll never be able to charge you $699.

Since you have open source to thank for revealing the alleged misdeeds of Linux contributors, and since you find open source so reprehensible, I assume that all of your IP proceeds will be donated to charity.

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