Posted on 06/24/2003 6:07:26 PM PDT by Ernest_at_the_Beach
Ashton was a macaw that lived in the lunch room at George Tate's software company, Ashton-Tate, home of dBase II, the first successful microcomputer database. There is a lot about that long-gone company that was unusual. There was the macaw, of course, which was named for the company, not the other way around. There was George Tate, himself, who died at his desk when he was only 40, but still managed to get married two weeks later (by proxy -- please explain that one to me). And later there was Ashton-Tate's copyright infringement lawsuit against Fox Software that pretty much destroyed the company when it became clear that Ashton-Tate didn't really own its database. NASA did, which meant that Fox had as much right to dBase as did Ashton-Tate. All this came to mind this week while I was thinking (still thinking -- this story seems to never end) about the SCO versus IBM lawsuit over bits of UNIX inside Linux. There is a lot SCO could learn from the experience of Ashton-Tate.
Those who have stuck with this saga recall that I earlier wondered whether SCO put those bits of UNIX System V into Linux themselves, whether they were scavenged from BSD UNIX into both System V and Linux, or whether the problem lay behind Door Number Three.
Door Number Three it is! According to some of those who have had a look at the offending code, it DID come from IBM after all. There are reportedly many lines of identical code, and at least some of the Linux code even carries an IBM copyright notice. Well, this is a surprise to me and a delight at SCO headquarters in Utah, I'm sure, but I'll bet my house that SCO does not prevail and here's why.
According to Laura Didio of the Yankee Group, "[SCO's] claims are not limited to just one area of the Unix System V kernel. SCO claims there are multiple instances of copyright violations. SCO said these include: NUMA (Non Uniform Memory access) a mechanism for enabling large multiprocessing systems, RCU (Read Copy Update) (and) SMP. All of the aforementioned functions represent high end enterprise performance and scalability functionality portions of the code."
And all those parts appear to have come originally from Sequent Computer Systems, now owned by IBM. RCU was implemented in Sequent's DYNIX/ptx, a legally-licensed derivative of System V, in 1994 for SMPs and in 1996 for NUMAs. The RCU code inside the Linux version 2.2 kernel even includes the name of Paul McKenney, who was a major contributor to both the DYNIX and Linux versions. The same guy wrote both pieces of code and probably did do some cutting and pasting between them. To SCO, this is the smoking gun that makes IBM viable for treble damages because SCO's UNIX licenses cover derivative works. That means if I have a System V source code license and I change that code, any changes I make live under the original UNIX copyright.
So that makes IBM guilty, right? Wrong.
If we go back to the Sequent RCU research papers published about this work, we'll see they are very carefully written to present a general way of solving this problem on almost any multi-threaded operating system. It is a general solution. In the key paper, the first mention of some version of UNIX doesn't come until page five under the "implementation" section. They did this work -- work that was supported by a variety of federal grants and involving more companies than just Sequent -- to develop a concept that they then implemented on UNIX.
Now let's think about the UNIX license and how it concerns intellectual property claims. I am not a lawyer, but unfortunately, I have been involved in several copyright and trademark cases, and believe I know the law in this area. SCO looks inside the System V source code and finds this implementation. They look in the Linux source code and find a similar or identical implementation. Sure enough, both can be traced to the same programmer at Sequent, which is now owned by IBM. And SCO, as the UNIX IP enforcer, owns the license for all derivative works -- all derivative UNIX works. David Boies sees this as his smoking gun and he's going to use it. But David Boies is not an IP lawyer by trade. This is key.
The IBM lawyers (who ARE IP lawyers) will strongly argue that none of this matters since we have a case of a single person who did two very similar implementations based on his earlier research. Both his UNIX and Linux versions (works B and C) were derived from his original research (work A) which was not exclusively limited to UNIX. His paper shows that was the case and while SCO may see it as the smoking gun, IBM will see it as the proof of innocence.
What SCO owns (forgetting for the moment Novell's contrary ownership claim and perhaps AT&T's) is the copyright on this particular work as applied to UNIX. But Linux is not UNIX, so applying the same ideas -- even the same code if it comes originally from an upstream source -- is not necessarily copyright infringement.
Say I write a new high-level programming language, then do nearly identical implementations of that language for UNIX and Linux and the UNIX version is made part of some official UNIX distribution. Does that mean the Linux version violates the UNIX copyright? No. But I wrote both versions and the code is identical. Surely that is a copyright violation? No. This isn't a matter of clean rooms and virgins and reverse engineering, it is a matter of precedence and authorship. Sequent (now IBM) did not give up all its rights to the code when it was made part of UNIX. They were very careful to plan it that way.
IBM has the largest legal department of any company in the world. They are INCREDIBLY sensitive about IP ownership, which produces for them more than $1.5 billion per year in license fees. They have embraced the GPL very carefully for their Linux work. The very fact that this code was released under the GPL indicates it was vetted and found acceptable by the IBM legal department. It's not like sometimes they don't bother to go through this procedure.
The upshot is that I believe David Boies will put on a very good show, but that the case will be thrown out on its merits.
And while this is happening, a whole lot of damage will have been done to vendors and customers alike, with only one party benefiting from the drama -- Microsoft.
SCO is effectively trying to destroy both the UNIX and Linux markets. This makes no sense, but that is the logical result of their current efforts. The idea that 1,500 of America's largest companies will be forced to drop Linux and will do so in favor of SCO's UNIXware is ludicrous. Why would those companies spend big bucks buying licenses from SCO -- a company they are upset with -- when they can comply just as easily, and almost for free, by converting to one of the BSD variants? Only Microsoft has had success bullying customers into buying its operating systems and SCO is definitely not Microsoft. This behavior won't sell any software.
Meanwhile, Oracle is trying to destroy PeopleSoft, one of the most successful application development companies around. PeopleSoft's Customer Relationship Management (CRM) software is at the heart of many of the biggest Oracle databases. Oracle, thinking it is reaching for growth in a flat market, actually runs a terrible risk of infuriating its biggest and most important customers.
Microsoft is smart and quick. They are no doubt angling to take advantage of this new chaos in the software industry. If history repeats, Microsoft will make very good business decisions. Everyone else will make very poor, if not stupid business decisions. The result will be that Windows will be stronger, and Microsoft's own CRM products, acquired when it bought Navision (the Danish CRM company), will gain a foothold in the market against PeopleSoft and Oracle. A year from now, Microsoft will be a vastly more powerful business even than it is today, which is saying something.
Where is IBM in all this? If IBM were smart, they would be beating a path to J.D. Edwards, PeopleSoft, and SAP's doorsteps. They would be making those companies sweetheart deals to support and resell IBM's Websphere development environment and DB2 database, grabbing some market share from Oracle. IBM should be helping PeopleSoft hold Oracle at bay, making it worthwhile for customers to move their PeopleSoft and SAP applications from Oracle to DB2. But this is very unlikely to happen.
Unfortunately, it would take IBM months to recognize such a golden opportunity and more months to approve a plan. Probably every IBMer who sells or supports products in this "space" (IBMspeak) understands the situation. But when your leadership is too unaware and too lethargic, well opportunities are missed.
Which brings us back to Ashton the macaw. When Ashton-Tate sued Fox Software for copyright infringement in 1988, the suit was eventually thrown out because Ashton-Tate was shown to have made false statements in its original copyright application for dBase II.
The company claimed that it "owned" the source code underlying dBase II -- code drawn from a database called Vulcan that was developed by Wayne Ratliff at NASA's Jet Propulsion Laboratory. Vulcan was a Z-80 assembler version of JPLDIS, a mainframe database program written at the lab by Jeb Long and others. Long later joined Ashton-Tate and was responsible for leading development of dBase III and IV. Where Ashton-Tate apparently made its mistake was in forgetting that buying the marketing rights to Vulcan from Ratliff didn't invalidate the intellectual property rights of Ratliff's employer, JPL.
Think about it. Ashton-Tate's claim on dBase was, in many ways, similar to SCO's current claim on derivative UNIX works. They both ignored upstream property rights of others. What is ironic about this is that Fox Software wasn't the only company sued by Ashton-Tate for this supposed copyright violation. Fox's co-defendant was SCO. And having been on the other side of such a similar case, they should know better.
Does that mean that they'll change the name of "swap space" to "hot babes space?" 'Cause seriously, that would make this whole disaster we call LUNIX interesting to me.
Maybe we could get it produced by Harry Novak or David F. Friedman, 'cause LUNIX is sort of like being stuck in a Nazi concentration camp, only without Ilsa or any of the other hot babes.
I mean, would fun be so bad? I mean, microsoft might suck, but at least its fun. Lunix, on the other hand, is more akin to having one's face eaten off with acid, or maggots, which just goes to show that, just because something works well in a Lucio Fulci movie, doesn't mean the Open Scourge community should try to translate it into an operating system. Or so says I! And I would know, I supose. I've seen enough zombie films to recognize one when I comes across one.
Incidently, in one of the more under reported stories of the year, did you know that being undead gave you thirty points towards entry at the University of Diversity in Michigan? Its true! And its a well known fact that zombies work free over night in the IT department. And the smell of rotting flesh acclimates students to the socialist takeover. I would not take the time to write it if it were not true! That's how we all know the Hitlery book is fake, she couldn't even be bothered to write down her own lies, she had to hire ghosts to lie for her.
All my lies are true and to the point!
They're going to have a hell of a time proving that, if the code was the same. The statement is made that "they're going to have a hell of a time proving that." The purpose of this statement if it even has one is to sow fear, uncertainty, and doubt (FUD) concerning the case in general, to slander the IBM Corporation, and perhaps to promote the idea that SCO's lawsuit has some merit. I personally believe the lawsuit to be vexatious litigation, an attempt by rapacious, unscrupulous lawyers to induce IBM to buy their company to silence them, or at least pay them off. Why IBM? Because they have money. These same guys already sued Microsoft, and got money out of them. In the tradition of the Plaintiff's Bar, it's on to the next deep pocket! If you are new to this issue, you presumably do not know what individual is being spoken of here, so you have no way of measuring the veracity of the FUDster's claim. The individual is one Paul McKenney, an engineer once employed by Sequent Computer Company, since acquired by IBM. Mr. McKenney is the author of some code found in SCO's source library, and Mr. McKenney's work was also the basis of some very similar code found in the linux kernel. There is little doubt who put the code in linux, since it contains these comment lines:
+ * + * Copyright (c) International Business Machines Corp., 2001 + * + * Author: Dipankar Sarma + * (Based on a Dynix/ptx implementation by + * Paul Mckenney ) + * This is not an infringement of anything if both versions flow from a prior work of research. How might one "prove" the existence of prior research? And that Mr. McKenney had anything to do with it? Well, one way would be to produce a copy of Paul E. McKenney. Selecting locking primitives for parallel programs, Communications of the ACM, Vol. 39, No. 10 (1996). Even better would be a patent application that described the invention, independent of UNIX or any other operating system, especially if that application pre-dated the first implementation on UNIX. That would make it a slam dunk. Such an application exists, because the patent was in fact awarded. The full-text image, clearly identifying Paul McKenney as a co-inventor, is on line and can be viewed at the Patent Office site. Visitors to the page will notice that the patent was applied for in 1993, and assigned to Sequent Computer, now a wholly-owned subsidiary of the IBM Corporation. In other words, IBM holds a patent on technology which SCO claims is its intellectual property, and which IBM stole from it. Draw your own conclusions concerning the merits of the SCO claim, or the difficulty that IBM will have in "proving" that they own the technology in question. But this is merely one utterance of a noise machine, a single attempt to spread spurious FUD. There will be more. Many more. You will hear claims from SCO that they have found "identical, or nearly identical" sections of code in what they call "their property," and also in contributions that IBM has made to linux. The insinuation is that IBM stole these items from them. It is highly likely that a previous "SCO" acquired this code from IBM, or from Sequent, during a joint development project in 1998. It is very possible that SCO's lawyers did not know this when they filed the suit. Virtually no one at the "SCO" of today was at the "SCO" of 1998 (they are in fact different companies in different states). This an extremely complex case that turns on many esoteric technical issues, some rather fanciful lawyering, and frankly, some bald-faced lying. But because at root it is more an attempt at public extortion than a lawsuit, "sound- bite" rhetorical campaigns have been prepared to influence public opinion. The case is vulnerable to those, because it involves issues that require fairly detailed explanation to even understand. Anyone wanting to steer clear of FUD should avoid sound-bites and sound-bite campaigners. |
On technical terms, the engineer was 'tainted' and should have never been allowed to work on OSS function that was similarly implemented in Unix. This recent admission blows a hole as big in this case you have in your head.
Danger you make me laugh. Avoid sound bites you say, how hilarious. Those 'sound bytes' are simply us breaking down the case to it's simplest possible terms, but you're still not able to comprehend because of your fascination with M$ and the promise of 'free software' has corrupted your judgement. On technical terms, the engineer was 'tainted' and should have never been allowed to work on OSS function that was similarly implemented in Unix. This recent admission blows a hole as big in this case you have in your head. A second characteristic of the noise machine is that it responds with bluster and insults when challenged. It does not, however, respond with evidence supporting its case. It might try "proof by louder assertion," but that appears to be the limit of its ability. In the interim, the noise machine has stated that IBM is "going to crucify this linux hack that did it in his mind "for the community". The code contributed by IBM to linux is identifed as such by IBM copyright notices, as I posted in #24. IBM is hardly trying to "disavow any knowledge... of his actions." The noise machine's fulminating might be interpreted as meaning that the "linux hack" (who holds multiple patents and is a published author in the Journal of the ACM) did this without IBM's knowledge. This noise machine just says things; one really can't put much stock in any of it. It's all FUD. Note the accusatory tone in the noise machine's statements about "these recent admissions." As if IBM were on the stand and coughed this up under tough cross-examination, instead of publishing it right in the code... in 2001. The BlusterMatic says anything, claims anything, accuses, and slanders. What it does not do is speak factually about anything. It blows noise and FUD. |
Which were granted on trust and have never been tested by a US Federal Court case. You can continue to dream that (as you previously posted on another thread) 'IBM will come down and plunk some copyrights and that will be the end of it' all you want. SCO is arguing breach of contract, unfair competition, etc and will certainly remind the US judge that US trade secret technology made its way OUT of the US as a result of this - an issue you as of yet have still refused to confront.
?????????????????
Here the noise machine states as a scary fact a non-sequitur based on an unsubstantiated claim. That in itself may be patentable, "Method and Apparatus for Generating FUD in a Discussion Forum by Combining Illogic With Unproven Claims."
SCO claims as its trade secrets certain items of technology that are known to be IBM's patented inventions. That's interesting. We'll see how far they get with it. In the meantime the only known "facts" are that IBM has a patent and SCO has a claim. Oh, there is one other fact. The version of the code which is in SCO's code library which forms the basis of their claim that it is their trade secret... was written by Paul McKenney when he was at Sequent, not by anyone at SCO. People suspect it got into SCO's code base during the joint project in 1998. But if not... how did it get there? SCO's lawyers had better hope IBM or Sequent licensed it to them. Because there's no question who wrote it.
The SCO lawyers need to start revising their claims , as we understand it, it doesn't look good for them!
Again, Nick, my hat's off to you; please keep it up.
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