Supposed 'Proof' Of SCO's Infringement Claims Against Linux Seem Lacking

from the really?-that's-it? dept

Slashdot has the story of someone involved in the SCO case finally showing off some of the "evidence" that SCO believed proved Linux infringed on SCO's copyrights. Of course, with the case basically dead due to a court ruling (one of a few) that SCO never actually held the copyrights in question, this might not matter, but it's still interesting to view -- and, yet again, suggests how incredibly weak SCO's case is. The "evidence" is in a blog comment on an otherwise unrelated blog post by Kevin McBride, a lawyer who is the brother of former SCO CEO Darl McBride, the mastermind (or puppet, depending on who you talk to) behind SCO's strategy.

In that comment, Kevin McBride lists out 46 different "examples" of code that SCO claimed was copied from Unix into Linux. In case those files conveniently disappear, a Slashdot user conveniently republished the comment and archived the files. If you look through the files, you don't have to be a programmer to start questioning the copyright claims. Most of the lines are not direct copies at all, and seem to be on really, really, really basic functions -- the type of thing that just about anyone would program to create that functionality. In other words, it's difficult to see how there would be any copyright on that code at all, since it was hardly original or requiring any form of creativity. Others in the Slashdot comments point out that some of the code appears to have originated in BSD code, outside of what SCO was claiming it held rights to, and others suggest at least parts of the code came from a separate third party. Furthermore, even looking through the files it's difficult to find many cases where you could even claim "cut-and-paste copying" as was alleged. There does appear to be similar implementations of similar features, but that's quite different than copyright infringement.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    PaulT (profile), Jul 12th, 2010 @ 6:40am

    There's 2 theories I've heard about this case. The first is that SCO recognised that its UNIX business was doomed to failure, it had lost too much ground with Linux products, and wanted IBM to buy it out. McBride or some other "genius" thought that if they threatened legal action against them involving Linux (which was fast becoming a core part of IBM's business), then IBM would quietly pay to shut them up. That failed when IBM defended the suit, and so they got dragged into court to their ultimate doom.

    The other theory is that McBride was convinced by Microsoft (who are known to have partially funded early action in the case) to sacrifice his failing business in order to help them fight against Linux - which was gaining a lot of ground against MS in all sorts of areas. By creating FUD in the business headlines, they could convince large- and medium-scale business customers to stick with them instead of the cheaper and more stable free software. Remember that the early law suits included not only IBM but also Red Hat and one of its own customers (Autozone) in separate suits - suing major suppliers *and* major customers of Linux would fit this theory.

    Even if you don't believe these conspiracy theories, it's pretty clear that SCO's case - launched on a fanfare of "thousands of lines of infringing code" - was dead in the water before it even started.

     

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  2.  
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    Trails (profile), Jul 12th, 2010 @ 6:51am

    There are similarities

    There are some strong similarities between the two codes pieces in some instances (others are laughable).

    That being said, code that HAS been copied over may be
    1) Sourced from BSD
    2) Sourced from Linux into System V (a violation of the GPL, in other words)
    3) Sourced from some common third party
    4) Part of Caldera's contributions to OSS (before they became SCO they OSS'ed a large portion of code)


    My point: just because code is in System V and Linux doesn't mean it originated from System V.

    Regardless, at this point System V isn't even owned by SCO according to Utah courts so they're legless.

     

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  3.  
    identicon
    moo, Jul 12th, 2010 @ 7:04am

    All of the code comparisons that Mr. K. McBride linked to, were revealed in the SCO vs. IBM case in discovery around December 2005. There is nothing new here.

    The only thing that's new here is that Kevin is speaking out giving his own opinion that SCO's claims have some merit (which a lot of people would vehemently disagree with, of course).

    However incorrect his beliefs may be, I applaud Mr. McBride for being willing to debate with his strongest detractors on a post on his own blog. Both Mr. McBride and the other posters were polite and courteous during the exchanges, showing that even when you disagree with someone, its possible to debate them in a respectful manner.

     

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  4.  
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    Dark Helmet (profile), Jul 12th, 2010 @ 7:10am

    Re:

    I'm not sure where this idea that internet discussions are generally devoid of politeness comes from. I have yet to see an internet site of a serious nature where the level of discussion was any more or less congenial than real life discussions. Sure you'll get some arguments that devolve, but that happens IRL as well.

    In any case, it's one of things I love about Tech Dirt. I've had amazing disussions w/the people here even when I've disagreed w/them, including Mike....

     

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  5.  
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    fogbugzd (profile), Jul 12th, 2010 @ 7:19am

    Tenacity in the face of facts to the contrary

    In some professions it is admirable when someone believes in their cause despite the evidence against them. We can admire a football coach who tries to rally his team when all objective evidence says they are going to lose. However, part of an attorney's job is to help their clients see reality. No matter what an attorney says in court or in public, a lawyer needs to be honest with the client about the legal situation.

    However, even a bad coach realizes that the game is over when the final gun goes off. If these guys think that this evidence of copying is strong enough to win in court, then maybe we shouldn't be surprised that they have trouble understanding that they have lost the case.

     

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  6.  
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    Jose_X, Jul 12th, 2010 @ 7:32am

    I haven't looked at these files today, but years ago I remember discussion over how many of these files where parts that needed to be similar enough in the external interface for the sake of basic interoperation. Thus, one reason for the SCO attacks might be to try to set precedent that would help create toll booths (based on copyright law) for basic functional intereoperatiblity requirements of software (as happens today with patents, don't ask me why).

    Another point that was brought up years back is that SCO (and Caldera before it) was still releasing all of those files on their public website under the GPL copyright license years into the IBM trial. So, assuming permission were even needed (for anything beyond fair use or independently created), SCO went ahead and gave an everlasting license to those particular files to anyone (by extension of the fact GPL licensees would be entitled to pass on those files under the same terms) and then started suing those that went ahead exercising those rights.

     

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  7.  
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    Jose_X, Jul 12th, 2010 @ 7:49am

    Re:

    [Just realized parent was repeating earlier comments.]

    Also...

    Fortunately for most of us, the community has been able to craft and retool the open licenses to create significant leverage to promote openness despite changing threats. The community has also chosen time and again to exercise their rights under such licenses, eg, to "fork" (or simply start new open source software projects) and abandon support for misbehaving or untrustworthy participants. This is a great case of the wider community helping to create a commons usable by all and to band together to thwart threats. A "tax" on open source would go far to kill it off as a promoter of free markets with very low costs to innovation. I do hope this spreads to other information markets. We are all the richer (and safer) as a society for the contents created, and protectionist walls come down, enabling more people to pursue their own goals.

     

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  8.  
    identicon
    ROFL, Jul 12th, 2010 @ 8:14am

    UNIX code

    One of the big issues with UNIX code and copyright, is that a lot of the UNIX code base was wholesale pulled in from BSD years ago. Both Linux and system V pulled from BSD when building up their code.

    With the BSD method of development both systems are more the welcome to do as they have done. Pulling it into System V and making it proprietary, or pulling it into linux and then putting it under the GNU license. (Though I think some BSD people get pissed about making BSD code into GNU code.)

    The long and short of it is that as a system, there is a UNIX copyright. The more you bust it up, and the smaller the snippet gets, copyright protections whither and fade.

    There is no copyright on printf "Hello world." without the larger context.

     

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  9.  
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    Anonymous Coward, Jul 12th, 2010 @ 8:19am

    Re:

    No it's not!

     

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  10.  
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    chris (profile), Jul 12th, 2010 @ 8:49am

    Re: Tenacity in the face of facts to the contrary

    However, part of an attorney's job is to help their clients see reality. No matter what an attorney says in court or in public, a lawyer needs to be honest with the client about the legal situation.

    don't hang around with many lawyers do you?

    all of an attorney's job is to amass billable hours. tenacity in the case of facts to the contrary is the surest way to amass billable hours.

     

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  11.  
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    chocota (profile), Jul 12th, 2010 @ 8:52am

    Anybody Please. What BSD means?? Thanks

     

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  12.  
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    TtfnJohn (profile), Jul 12th, 2010 @ 8:58am

    Curious how things work sometimes

    As this side of the story arrives here on Techdirt, over at Groklaw there's a story about IBM filing a "complete defence" to SCO's allegations back in 2006.

    http://www.groklaw.net/article.php?story=20100712041127830

    The stories aren't directly related but PJ's not known for doing something because she has an itch. She says this is for archival purposes and I don't doubt her on that score but tie that to this and is this another case of getting ready for "the company that's dead but won't lay down"?

    Coincidence, yeah, but when observers of SCO start into this kind of thing I do start to wonder.

     

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  13.  
    identicon
    Anonymous Coward, Jul 12th, 2010 @ 9:01am

    Berkeley Software Distribution (BSD, sometimes called Berkeley Unix) is the UNIX operating system derivative developed and distributed by the Computer Systems Research Group (CSRG) of the University of California, Berkeley, from 1977 to 1995.

    Historically, BSD has been considered a branch of UNIX — "BSD UNIX", because it shared the initial codebase and design with the original AT&T UNIX operating system. In the 1980s, BSD was widely adopted by vendors of workstation-class systems in the form of proprietary UNIX variants such as DEC ULTRIX and Sun Microsystems SunOS. This can be attributed to the ease with which it could be licensed, and the familiarity it found among the founders of many technology companies of this era.

    Though these proprietary BSD derivatives were largely superseded by the UNIX System V Release 4 and OSF/1 systems in the 1990s (both of which incorporated BSD code), later BSD releases provided a basis for several open source development projects that continue to this day.

    Today, the term of "BSD" is often non-specifically used to refer to any of these BSD descendants, e.g., FreeBSD, NetBSD, OpenBSD or DragonFly, which together form a branch of the family of Unix-like operating systems.

    http://en.wikipedia.org/wiki/Berkeley_Software_Distribution

     

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  14.  
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    harbingerofdoom (profile), Jul 12th, 2010 @ 9:03am

    Re: Re:

    i think it probably comes from the idea that most places no matter how seriously they want to be taken eventually attract people who no matter how valid their actual idea may be, dont always have the correct tools to express those ideas or debate them without it turning negative either at the outset or very quickly thereafter. even here discussions have been godwinned...

    from the stuff i have seen, most (not all) people who comment on forums have their belief systems firmly grounded on one extreme or the other. so once any kind of debate gets started, its rare to see any sort of middle of the road level headed response.

    it kind of makes it looks like the US is full of nothing but evangelical biblethumpers, atheists bent on destroying anything to do with religion, ultra-liberal bleeding hearts and uncaring corporate supporting conservatives only interesting in making a buck... with views from the middle attacked by all sides (which is part, i think, of why MOR folks dont really join such discussions usually).

     

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  15.  
    identicon
    IT Expert, Jul 12th, 2010 @ 9:09am

    There seem to be one main lesson from this whole saga: having apparently compelling evidence and widespread public support, is not the same as having a winning case.

    We saw this with SCO's claim to own the copyrights where SCO lost (despite having many former executives testify for them). Likewise if SCO had owned the copyrights, with this evidence of copying and apparent similarities in the code bases, SCO may well have lost too - evidence of copying that convinces a lay person may not be enough to convince a judge or win a legal case.

     

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  16.  
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    Richard (profile), Jul 12th, 2010 @ 9:13am

    Re: There are similarities

    Can you identify the files with "strong similarities"? All the ones I could see were in the "laughable" category.

     

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  17.  
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    Bubba Gump (profile), Jul 12th, 2010 @ 9:15am

    Re: Re:

    Oh, yeah??? Why don't you keep your big, fat helmet shut!!! :-)

     

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  18.  
    identicon
    Anonymous Coward, Jul 12th, 2010 @ 9:18am

    Re:

    There seem to be one main lesson from this whole saga: having apparently compelling evidence and widespread public support, is not the same as having a winning case.

    You must be reading some different article, SCO had neither.

     

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  19.  
    icon
    Richard (profile), Jul 12th, 2010 @ 9:21am

    Re: Re: Tenacity in the face of facts to the contrary

    all of an attorney's job is to amass billable hours.
    Not a good strategy unless you want to work long hours all your life. Winning cases will push up your hourly rate - which is probably a better strategy in the long run.

     

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  20.  
    icon
    PaulT (profile), Jul 12th, 2010 @ 9:21am

    Re:

    Berkeley Software Distribution, a flavour of UNIX

    http://en.wikipedia.org/wiki/Bsd

     

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  21.  
    identicon
    Spudd86, Jul 12th, 2010 @ 9:25am

    Re:

    You could try using the googles... or just read Wikipedia http://en.wikipedia.org/wiki/Berkeley_Software_Distribution

     

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  22.  
    icon
    PaulT (profile), Jul 12th, 2010 @ 9:25am

    Re:

    Well, we've been waiting since 2003 for the compelling evidence. Do you know where they're hiding it, because they've yet to present it in a court of law?

    As for public support? Where? Was that in the same locker as the evidence?

     

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  23.  
    identicon
    Spudd86, Jul 12th, 2010 @ 9:30am

    Re:

    This evidence isn't exactly compelling, and decidedly would not have stood up in court, SCO would have had to demonstrate that the code in question DID NOT originate in BSD or something older, this would be hard; then it would have convince the judge that it was infringing, again hard (for the reasons that it's similarity orientates in the fact that they are implementing the same standard)

     

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  24.  
    identicon
    Anonymous Coward, Jul 12th, 2010 @ 9:49am

    Re: Re: Re:

    That helmet is only dark from shoving it you know where.

     

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  25.  
    identicon
    Anonymous Coward, Jul 12th, 2010 @ 10:06am

    Re:

    "parts that needed to be similar enough in the external interface for the sake of basic interoperation."

    Seems like most people discussing this issue on Internet forums assume that this means the material is unprotectable by copyright, but I have never seen any case law cited to support that. This would have been a major issue for decision had the infringement matter been evaluated (as opposed to ownership).

    "Another point that was brought up years back is that SCO (and Caldera before it) was still releasing all of those files on their public website under the GPL copyright license years into the IBM trial. So, assuming permission were even needed (for anything beyond fair use or independently created), SCO went ahead and gave an everlasting license to those particular files to anyone (by extension of the fact GPL licensees would be entitled to pass on those files under the same terms) and then started suing those that went ahead exercising those rights."

    This was also a major issue, but I've never seen anyone sho how SCO met the GPL's terms on how one grants a license.

     

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  26.  
    identicon
    Anonymous Coward, Jul 12th, 2010 @ 10:08am

    Re:

    Huh, I generally think that people widely hated SCO and thought their claims were bogus, but they had a stronger legal argument than most gave them credit for (obviously not strong enough on the ownership issue).

     

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  27.  
    identicon
    Bart Massey, Jul 12th, 2010 @ 12:41pm

    Theories of the SCO suit

    The theory of the SCO lawsuit that I found most probable is based on the allegation that Darl McBride's contract back when was written in such a way that he would get an enormous bonus if he could keep the SCO stock price above a certain level for (IIRC) 18 months. As you will recall, the lawsuit definitely did that, making him an extraordinarily wealthy man.

    The only mystery here is why the SCO stockholders didn't file a class action for malfeasance. I am not a lawyer or a high-powered corp exec, so I don't really know. I can only speculate that by the time they figured out what was going on, SCO was so close to bankruptcy that a suit would have been pointless.

     

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  28.  
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    chris (profile), Jul 12th, 2010 @ 2:46pm

    Re: UNIX code

    One of the big issues with UNIX code and copyright, is that a lot of the UNIX code base was wholesale pulled in from BSD years ago. Both Linux and system V pulled from BSD when building up their code.

    my take on it was the reverse: that berkely unix (BSD) and system V (AT&T), while both based on earlier version 7 code from the 70's, had diverged enough through the 80's to be considered separate properties, hence the unix wars.

    as a result, the BSD's of the world had to replace all of the old system V code and vice versa, yet had to maintain portability and interface standards, hence the POSIX standard. it's been my understanding that the GNU project was a direct result of the AT&T vs. BSD patent war and was intended to "drop in" to any unix, and eventually replace all proprietary unix. the GPL is what it is because of these unix vendor shenanigans.

    the linux kernel was pretty late to the unix party and is considered to be a unix clone, rather than a variant.

    i took SCO's essential issue to be that IBM donated code from AIX to the linux kernel. AIX is a variant of systemV, and according to SCO violated some sort of patent or copyright. later, SCO altered course slightly to state that linux does basically the same thing as SCO, especially on the PC, and that IBM violated it's system V licensing agreement by donating code to the linux kernel.

    With the BSD method of development both systems are more the welcome to do as they have done. Pulling it into System V and making it proprietary, or pulling it into linux and then putting it under the GNU license. (Though I think some BSD people get pissed about making BSD code into GNU code.)

    again, my take is the opposite: in the days of BSD and AT&T prior to the unix wars, source code was how software was delivered. this code wasn't "open" because source code at that time simply was not "closed". source code was just source code and it was hacked upon by corporate and university researchers alike as a matter of course.

    indeed, my understanding is that unix didn't really become proprietary until workstation vendors like IBM, HP, DEC, and sun made unix a salable commodity. when unix was delivered to large shared systems, source code was merely a component of the proprietary hardware package.

    it is my understanding that BSD didn't become "open source" until after it had become "closed source" in the hands of sun and DEC. BSD wasn't "closed" until the market shifted from in-house development and customization of systems to pre-packaged proprietary software in the 80's and 90's. this was when the various unix vendors began suing each other over providing similar functionality.

    since the linux kernel came into the picture towards the end of this time (the early 90's), and the intel PC platform was generally not considered to be powerful enough for engineering at that time, i don't think much BSD code was available for PCs to be appropriated by the linux kernel project, except for maybe BSDi and it's involvement with walnut creek, freebsd and slackware.

     

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  29.  
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    vonbrand (profile), Jul 12th, 2010 @ 2:48pm

    Re: UNIX code

    No, there isn't BSD code in Linux (the kernel, that is the subject of SCOX vs IBM). By design: When Linux started, the whole USL vs UCB et al brouhaha was in full swing (if it hadn't, there probably wouldn't be any "Linux" today, but I disgress...), and so Linus and his gang were careful not to use possibly tainted code. Sure, there are broad similarities. Some come from Linus et al studying books on Unix (and operating system in general) design; others come from there just being so many ways of doing some things, and given that a kernel has to do lots of things, by force many will turn out similar; others are just the only (sane) way of getting something done.

    If you take a peek at BSD kernel and Linux internals, you will see that they are so radically different that any non-trivial "copying" between the two will be more in the line of ground-up reengineering.

     

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  30.  
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    vonbrand (profile), Jul 12th, 2010 @ 2:57pm

    Re: Reason for the whole saga?

    If it looks like a Unix, and runs programs like a Unix, and has system calls like a Unix... it must have been copied from our precioussss!!

    Never mind that anybody with even a vague knowledge of Unix (and Linux) history, and the reason for POSIX, SUS, and the rest will tell you this is ridiculous nonsense; and where it isn't, it would be very hard to untangle and get a clear claim to anything. Shame on SCOX' management, their own tech people must have told them so. Many times over.

    Add the fact that they did not own said "preciousss," as they must have known.

     

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  31.  
    identicon
    F, Jul 12th, 2010 @ 4:53pm

    "This was also a major issue"

    "I've never seen anyone sho how SCO met the GPL's terms on how one grants a license."

    Well that is all funny because I will show you how it is NO issue.

    SCO distributed Linux source code files from their own web site, acccompanied by the GPL license. That in and itself is sufficient. If SCO wrote the code themselves then of course they are free to re-release their own code under any copyright license they wish, including the GPL.

    So even if they did own the copyright on the code, they surrendered all rights to restrict its distribution when they put it up on their own web site.

    So go ahead and tell us that they own the copyright, which they don't. You see it doesn't even matter anyway, even if they did, they have already given away the code.

     

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  32.  
    identicon
    Anonymous Coward, Jul 12th, 2010 @ 5:23pm

    Re: Re: Reason for the whole saga?

    Actually, your first (apparently sarcastic) sentence is entirely sensible. I don't think anybody with an ounce of integrity would claim that Linux did not copy *anything* from Unix. The question is whether the copied material is protectable (and, of course, owned by the party claiming foul).

    As for "they must have known," even Novell (at one point) seemed to believe that SCO owned the copyrights at issue. A jury has had its say, so that's settled, but saying "they must have known" is off base.

     

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  33.  
    identicon
    Anonymous Coward, Jul 12th, 2010 @ 5:25pm

    Re: "This was also a major issue"

    "SCO distributed Linux source code files from their own web site, acccompanied by the GPL license. That in and itself is sufficient."

    Just go ahead and point me to the terms of the GPL that confirm this. Take your time. I'll wait.

     

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  34.  
    identicon
    Lawrence D'Oliveiro, Jul 12th, 2010 @ 6:00pm

    Not UNIX

    Historically, BSD has been considered a branch of UNIX ...

    “UNIX” is a trademark owned by somebody or other. You don’t get the right to use it unless you

    1. Pay them some significant some of money, and
    2. Pass some official compliance tests.

    Neither of which either Linux or the BSDs have done. Thus, none of them is entitled to call themselves “UNIX”.

     

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  35.  
    identicon
    Anonymous Coward, Jul 12th, 2010 @ 6:05pm

    Re: Not UNIX

    True, but that does not make his statement any less accurate.

     

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  36.  
    identicon
    F, Jul 13th, 2010 @ 9:36am

    Just go ahead and point me

    GPL contains this sentence:

    "This License applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License. "

    If SCO owned the copyright, they placed the work, along with the GPL, on their own web site, and the notice applies.

    You don't "accidentally" give away your own rights.

     

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  37.  
    identicon
    F, Jul 13th, 2010 @ 9:42am

    nobody cares about "POSIX" or "UNIX" compliance anymore

    It's the "UNIX" operating systems that are working to become "Linux" compliant. Look at Sun, BSD, Apple: they are adding Linux compliant APIs to their proprietary OSs.

    Even Cygwin is touted as "Linux" compatibility, not "POSIX"

    POSIX is dead. Long live POSIX. It served its cause well but it's time to move on.

    POSIX is missing many of the things needed to run programs on today's desktop and that is where the new defacto "Linux" standard will step in.

    And UNIX itself is even deader. Nobody cares about compliance with it any more.

     

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  38.  
    identicon
    Anonymous Coward, Jul 13th, 2010 @ 10:47am

    Re: Just go ahead and point me

    If you can now show anything suggesting that the party that SCO claimed was "the copyright holder" (Santa Cruz Operation, The SCO Group, and different entities at different times through their corporate history) "placed" a GPL notice on any of the works they were claiming ownership of, you'd have a pretty decent argument.

    Simply redistributing a notice placed by somebody else doesn't, in my view, meet the terms of the GPL.

    I'm not sure what to make of your statement that they placed the software, along with the GPL, on their website. ARe you saying they licensed their website under the GPL?

     

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