[ox-en] Re: [AFLUG] Impaired - is it SCO? preliminary thoughts.
- From: ken <kenchinwa yahoo.com>
- Date: Fri, 24 Oct 2003 11:35:25 +0100 (BST)
Hi Martin ,
Is this an academic research or a work related if it
is academic , I can direct you to some people doing
similer stuff. But if it is non academic work . How
ethical do you think it is???
ken
--- Martin Hardie <auskadi tvcabo.co.mz> wrote: >
Its been getting a bit boring here in Maputo so I
went to Nelspruit in Sth
Africa to do some shopping and sit in the air
conditioned mall. While I
waited and drank coffee I did some reading and the
next day put together
these notes regarding some of the responses to the
SCO litigation - it is
just a start.
I make no claims as a hacker, I am a mere Linux
user, in the jargon, a newbie
at that, but I have been trying to come to grips
with the various aspects of
the SCO litigation in order to assess their
relevance to my ongoing research
(re other ways to imagine law and OS). That research
is by nature part
legal, part philosophical and part political.
I am sending this rough work out so maybe we can
discuss it and those who
have something to add can help me and in fact us
all out in better
understanding what is happening. In case anyone
wants to accuse me of
something .. I am not doing this to defend SCO's
position but to try and get
to the bottom of it. I am not seeking to defend SCO
(or IBM for that
matter). I have just trying to sort the wheat from
the chafe. Any help is
appreciated. And please it is a working thing - not
finished thoughts or
conclusions.
Anyway to commence the process of disassembling SCO
and the courts I have
been going through a number of documents including
the complaints and
counter complaints filed in the SCO v IBM case and
the Red Hat v SCO case,
the OSI Position Paper on the SCO v IBM Complaint
and the document
"Halloween IX: It Ain't Necessarily SCO",
http://www.opensource.org/halloween/halloween9.html,
amongst other things.
At its core it seems to me at this point that the
litigation is based upon
the rights that SCO has acquired in a form of UNIX
based upon the broad
genealogy of AT&T - USL -Novell - Caldera - SCO.
And it is of course this
purchase and the variously related contracts that
give rise to the
simplification that this is not a copyright
dispute. But the more I read the
import of the dispute revolves around breaches of
contract which in
themselves refer back to the copyright purchased by
SCO. It may be to
characterise this dispute as not being about
copyright is to fall straight
into the lair of SCO's not inexperienced lawyers.
In Lessig's second tome, The Future of Ideas at page
53 the Prof. says:
"After 1984, UNIX would no longer be free....".
This it seems is a reference
to the fact that on "January 1, 1984, the Bell
System was broken up. ...
AT&T could enter the software business. ... (and)
... That year, the
corporation began to develop Unix as a commercial
product". The corporate
acquisitions history is such that whatever the
rights held by AT&T as of
1984 were in 1994 purchased from Novell by Caldera
and ended up being owned
by SCO.
This all seems clear from the Corporate History
outlined in the OSI Position
Paper (See:
http://www.opensource.org/sco-vs-ibm.html#id2788824).
We thus have a position were SCO bought something
which was a UNIX and was
from 1984 unfree. It was proprietary software that
was passed down from buyer
to buyer from AT&T to USL to Novell to Caldera to
SCO. But having worked this
part out things start to get messy but it seems to
me at this point that what
they bought seems to have been UNIX System V (r1).
Depending on what has been
done since that time System V (r1) seems to have now
grown into Open Unixware
8 and SCO Unix 7 (again see:
http://www.opensource.org/sco-vs-ibm.html#id2788824).
No in both the OSI Position Paper and in Halloween
IX: It Ain't Necessarily
SCO, the OSI gang tell us that whatever SCO bought
it has been "impaired".
Thus the next point to try and unravel this appears
to involve looking at
these impairments. In doing so given that e are
dealing with law,
(Intellectual) property and contracts (the things
that the GPL is based upon)
we need to examine these impairments using the same
tools.
The first impairment is said to be the "legal action
in 1992-1993, in which
Unix Systems Laboratories and Novell (SCO/Caldera's
predecessors in interest)
sued various parties including the University of
California at Berkeley and
Berkeley Systems Design, Inc. for alleged copyright
infringement, trade
secret disclosures, and trademark violations with
regard to the release of
substantial portions of the 4.4BSD operating system"
(OSI Position Paper).
The legal action which was in fact two separate
lawsuits: the first only
involved a denial of a interim injunction sought by
USL against Berkeley
until a trial could be held
(http://cm.bell-labs.com/cm/cs/who/dmr/bsdi/930303.ruling.txt);
the second
was commenced after the ruling denying the interim
injunction was made by
Berkeley against USL.
Now the Position Paper states that the request for
the injunction "was
denied in terms that made it clear the judge
thought BSD likely to win its
defence". I have only read this ruling once and in
then a cursory fashion. I
have to respectfully disagree with t he conclusion
reached by the OSI at
this time. And even if the judge did think this it
does not decide anything
f substance in relation to the copyright claimed by
either USL or Berkeley
at that point. It merely decided that any
injunction would need to await the
outcome of the trial. Interim injunctions are often
argued and often lost
with the final trial many times ending up in favour
of those who sought but
did not gain the interim injunction. But more to
the point it is only a
precedent for cases concerning the granting of
interim injunctions - nothing
more and nothing less. To claim that this ruling
"impairs" some rights that
SCO might hold does not hold any legal water.
Contrary to the facts stated
in the Position paper the case was not settled then
but after Berkeley
commenced their own action against USL.
See the discussion at
http://www.oreilly.com/catalog/opensources/book/kirkmck.html.
That chapter also discusses the second case: "the
University's suit claimed
that USL had failed in their obligation to provide
due credit to the
University for the use of BSD code in System V as
required by the license
that they had signed with the University. If the
claim were found to be
valid, the University asked that USL be forced to
reprint all their
documentation with the appropriate due credit added,
to notify all their
licensees of their oversight, and to run full-page
advertisements in major
publications such as The Wall Street Journal and
Fortune magazine notifying
the business world of their inadvertent oversight.
Soon after the filing in
state court, USL was bought from AT&T by Novell. The
CEO of Novell, Ray
Noorda, stated publicly that he would rather compete
in the marketplace than
in court. By the summer of 1993, settlement talks
had started. Unfortunately,
the two sides had dug in so deep that the talks
proceed slowly. With some
further prodding by Ray Noorda on the USL side, many
of the sticking points
were removed and a settlement was finally reached in
January 1994. The result
was that three files were removed from the 18,000
that
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