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Posted on 03/10/2004 12:14:05 PM PST by Ernest_at_the_Beach
SCO suddenly isn't faring so well in its lawsuit against IBM.
The company recently dropped claims that Big Blue had misappropriated its trade-secrets by placing them in Linux. This leaves the SCO argument resting upon two copyright infringement claims.
When IBM began building the AIX Unix system, it purchased a license from AT&T, the company that created Unix. AT&T's Unix business was later sold to Novell, which subsequently sold part of that business to SCO.
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It is not a new argument.
In 1985, concerned Unix customers asked AT&T to clarify that particular term of the license. AT&T agreed and published the license change in the Echo newsletter that got sent to all Unix licensees in August of that year.
Explaining the change, AT&T wrote that the sentence was added to assure licensees that the company would claim no ownership in the software that they developed--only the portion of the software developed by AT&T.
| SCO is legally bound to honor the contract and publicly stated interpretation of AT&T's terms. |
SCO should know there is ample case law asserting that APIs can't be restricted and are available for all to implement under "fair use" in copyright law. But even if such precedent did not exist, the Unix definition still can't be claimed as SCO's property. When Novell exited the Unix business, it transferred the Unix API, definition, and trademark to The Open Group, (http://www.opengroup.org/austin/papers/single_unix_faq.html), which maintains it today as their Single Unix specification.
SCO was only sold some rights to the Unix implementation. The Open Group asserts that anyone can implement the Unix API without any copyright encumbrance. So much for SCO's remaining copyright infringement claim.
And if for some reason all this was not sufficient, there is yet more evidence to prove the Unix API has been released for unencumbered implementation on four other occasions related to standards organizations. What's more, lawyers can point to a previous court case , as well as the release by Caldera, which now calls itself SCO, of old Unix code under an open-source license in 2002.
| SCO has watched its stock soar from 50 cents to over $20 while making claims that now appear dubious. |
The presiding judge in the case then issued a discovery order requiring SCO to deliver a report precisely listing what software it claims is infringed in Linux. After IBM delivers copies of the AIX source code, SCO will then get just two weeks to conclude its examination and make any additional claims. All the while, SCO has watched its stock soar from 50 cents to over $20 while making claims that now appear dubious.
When a company makes unfounded assertions for a month or two, it can be dismissed as a mistake or wishful thinking. When the distortions continue for a full year, that suggests a less innocent conclusion. There are hard questions about what's going on--especially when deceived stockholders are liable to left in the lurch.
biography
Bruce Perens is co-founder and director of Software in the Public Interest, an open-source development organization. He operates an independent consultancy and is a senior research scientist for open source at George Washington University's Cyber Security Policy and Research Institute.
Can Bush 2000 defend SCO from this?
SCO as successor in interest to ATT's rights can only have the rights that ATT had, and can never have MORE rights.
SCO si therefore bound by ATT's clarification, under the legal doctrine of "equitable estoppel".
On the way down!
| And now, back down to $9.50...
THE SCO pitch was that they would make billions suing IBM, and billions more suing end users of linux. The IBM thing very quickly turned into "a riddle wrapped in a mystery inside an enigma," with charges and countercharges and nothing really happening... except more and more delay. But no matter, SCO would start suing end users Real Soon Now. Then the money would start to flow in, and everybody would see that SCO was on its way to Billions And Billions. They've been promising that for months. They set a deadline in October, and then they didn't do anything. They set another deadline in February, and didn't sue anybody then either. "Pay no attention to that man behind the curtain, there will soon be Billions. Real Soon Now." How many times could they ride that horse? It was becoming a joke. Now imagine that you're one of those "financial types" who still doesn't really know what to think of this. You hear the "linux crunchies" screaming that the whole thing is a scam, and you see big-shot analysts like Cohen hyping the stock on TV. Deutsche Bank targets it at $45 a share. Now comes Earnings Day, and... eeeuuww, they lost 16 cents a share last quarter. Ah, but finally! On the very day the earnings announcement came out, SCO sued DaimlerChrysler! Here comes the Billions! On Monday you get a call from a buddy. "You seen that DaimlerChrysler suit? Nyaa, you don't need to be a lawyer. It's just a couple pages, and it's really simple. They sued Chrysler for not filing a form on time."
"So did everybody. In fact that's what the paper said it was about. But it's not. It's SCO suing one of their own customers... for not filing a form on time." The is the big "End User Lawsuit" we've been waiting months for? The one they finally announce on the day that they post rotten earnings? "These guys are crooks, Manny. That announcement was a crock. They tried to make everybody think that the Billions are now going to start rolling in. But it's a frigging PR stunt... they sued somebody for failing to fill in a form... just to have a lawsuit to announce. And they did it the day they needed a cover story for the bad news on the income statement." You might fool Wall Street with lawsuits about linux and derivative works and GPLs, but once they catch you blowing smoke in their face, it's over. |
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More Perspectives
I think that their lawsuit against DaimlerChrysler was the beginning of the end of them. Until they filed that one, most of the financial types didn't really know what to make of all this.