SCO Loses Yet Again; Is It Finally Over?

from the will-it-ever-die? dept

Is the bogus “we own Linux” lawsuit from SCO finally, finally over? I guess we can never say never, because it keeps coming back from the dead. However, it’s taken another head shot. As you may recall, many years back SCO claimed to own the copyrights on Unix, and sued IBM and some other Linux users for infringing on their copyrights — though, it never actually showed any evidence to back that up. Soon after all this started, Novell came along and noted that, as far as it knew, Novell still held the copyrights, not SCO. So the legal battle shifted to who actually held the copyrights, and SCO has repeatedly come out with the short end of the stick. First a judge ruled that Novell held the copyrights. After an appeals court said that a jury should decide that issue, rather than the judge, the case went back to a jury who also found that Novell, not SCO, held the copyrights. SCO then told the judge that the jury didn’t really mean what it said in plain language, and said that the judge should order Novell to hand over the copyrights anyway.

That’s not happening. Once again, the judge has ruled for Novell over SCO. In theory, this should end the whole saga. The judge ordered that the case be closed, and without the copyrights, SCO’s suit against IBM is dead as well. Will SCO give it up finally? Or will it somehow be reanimated yet again?

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Companies: ibm, novell, sco

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78 Comments
Hephaestus (profile) says:

Microsoft has been fighting a holding action here ...

The rationale behind this lawsuit has been to keep corporate and government customers from moving over to linux on their servers followed by their workstations. It has and hasnt worked. It has worked in that corporations havent been adding to the pool of help, documentation, and code the way they should be. This has slowed the acceptance of Linux. It hasnt worked in that everyone knows who is behind this lawsuit and Linux is being implemented everywhere.

Anonymous Coward says:

I may be the only one, but I wish we could have seen the actual copyright infringement issues played out.

I was surprised when the jury verdict came down saying Novell owned the copyrights, since all the Novell execs from the time said they thought they transferred them to Santa Cruz, but SCO can’t say they didn’t have their opportunities.

Anonymous Coward says:

Re: Re: Stupidity

My understanding is that the lawyers were the star witnesses for Novell, but many of the Novell execs involved in the deal opined that the copyrights were being transferred.

I’ll be the first to admit that the agreement language was poorly crafted by SCO’s attorneys at the time, but it’s telling that Novell first agreed that SCO owned the copyrights when it announced its licensing program, then came back and said that Novell still owned them.

Also, I’m not Darl.

abc gum says:

Re: Re:

“actual copyright infringement issues “

You could’ve seen their “evidence” had you signed an NDA.
Even with the secrecy, word got out about what SCO considered to be evidence. This included:
1) portions of BSD, which SCO can not lay claim to
2) headers and comments, which are not subject to copyright
3) contributions from the open community
4) similar such nonsense

Anonymous Coward says:

Re: Re: Re:

“headers and comments, which are not subject to copyright”

I wouldn’t be so sure about that.

Aside from that issue, everyone knows that Linux is a “clone” of Unix-based systems. The most interesting (to me) issue that could have been addressed is whether copying the overal structure of an OS while re-writing (most of) the literal code constitutes copyright infringement.

Anonymous Coward says:

Re: Re: Re:2 Re:

All facetiousness aside, the Copyright Act treats “funcationality” differently when addressing graphic/sculptural works (a category your hypothetical car would fit into) than literary works (which software falls into).

Thus, “functional” aspects of code are more likely to be protected by copyright than “functional” aspects of other works.

It would have been interesting to see a court address these issues, along with getting a ruling on where idea/expression divide in terms of an operating system.

PaulT (profile) says:

Re: Re: Re:3 Re:

“Thus, “functional” aspects of code are more likely to be protected by copyright than “functional” aspects of other works.”

Indeed. But headers and comments are not functional aspects of the code and are not subject to copyright, which was the original statement that you were responding to. (As ever, apologies if you weren’t the first AC, please consider logging in to differentiate yourself to avoid confusion in the future).

PaulT (profile) says:

Re: Re: Re:5 Re:

I’m at work so don’t have time to search, but I remember there being a very good series of articles on Groklaw during SCO’s attempts at discovery that explained which lines of code SCO seemed to be under question. These were found to be largely comments & headers.

(EDIT: OK, here’s an early article from Linus Torvalds about the headers http://www.groklaw.net/articlebasic.php?story=20031222174158852 – there are many, many other articles on the same subject on that site, especially during the period when SCO was trying to force discovery)

As you stated above, functional code is more likely to be subject to copyright and so comments would be excluded. I suppose it depends on the nature of the comment as well. But, if the comment is just describing the basic function of the line/block of code it refers to, I do wonder how it could possibly be subject to copyright.

As for headers, we’re talking about standard UNIX-style headers. As I understand the claims (I haven’t been following them too closely since it became clear that SCO had no case whatsoever and they filed bankruptcy proceedings), they largely covered headers that were almost impossible to write in any other way. I’m not a coder, nor a copyright lawyer, but it strikes me that an algorithm or section of code that only has one operative way to be written, and said code is vital to the operations of a system, then copyright should not be applicable.

Now, the SCO case is a little more complicated as they not only distributed many of the files under question under the GPL, but do not even own the copyright to many of the files they’re trying to sue over. Maybe a different case would yield a different result, but in this case it’s pretty clear there’s no copyright infringement.

Anonymous Coward says:

Re: Re: Re:6 Re:

“As you stated above, functional code is more likely to be subject to copyright and so comments would be excluded.”

Functional code is more likely to be protected than function aspects of non-literary works. Functional code is *not* more likely to be protected thatn non-functional code. Thus, there is no reason why comments would not be protected by copyright.

The “impossible to write any other way” argument w/r/t headers is an interesting one. If the original author couldn’t have written the headers any other way, then the headers would be unprotectable. However, the fact (or claim, depending on your point of view) that the alleged copier “couldn’t have written them any other way” doesn’t strip the original headers of their copyright protection.

This is the sort of thing that it would have been interesting to see analyzed by a judge in a public opinion, in contrast to simply adopting the “conventional wisdom” on sites like Groklaw.

Anonymous Coward says:

Re: Re: Re: Re:

…”whether copying the overal structure of an OS while re-writing (most of) the literal code constitutes copyright infringement.”
You mean if coding according to relevant industrial standards like POSIX and RFCs can be regarded as copying?
Of course the final products will be similar. That’s actually the purpose of industrial standards. See electrical sockets.
Also keep in mind that a good deal of “unix” is based on BSD code, which allows copying and derivative works. All unix vendors, and even M$, use BSD code, or build on it.

It is a non issue.

Anonymous Coward says:

Re: Re: Re:2 Re:

The question isn’t whether coding according to standards is copying. It is (unless you came up with the standard yourself). The question is whether it can be copyright infringement.

As for the BSD issue (or the GPL issue, or similar “it was licensed” issues), that could be a defense to certain acts of copying, but the case never got so far as for a judge or jury address them.

abc gum says:

Re: Re: Re:3 Re:

“As for the BSD issue (or the GPL issue, or similar “it was licensed” issues), that could be a defense to certain acts of copying”

I assume that use of the term “copying” is being used to denote copyright infringement.
Use of code released under the BSD or GPL is not considered “copying” when the license is adhered to.

Anonymous Coward says:

Re: Re: Re:4 Re:

“I assume that use of the term “copying” is being used to denote copyright infringement.”

Well, my sentence there was not entirely clear. I intended to state what you just stated (i.e., the “it was licensed” argument, if successful, would mean that acts of copying that might otherwise be considered copyright infringement would *not* be copyright infringement).

Bruce Ediger (profile) says:

Re: Actual Copyright Issues playing out

Don’t we have quite a good handle on that? Discovery in the SCO v IBM case is long, long over. SCO seems to have found exactly zero evidence even after trolling through the versioning system that IBM uses to keep AIX source in.

I know that the outcome isn’t a 100% certainty, Perry Mason moments do happen, I suppose. But still, wouldn’t the betting man put his money on IBM at this point in that legal action?

Anonymous Coward says:

Re: Re: Actual Copyright Issues playing out

“SCO seems to have found exactly zero evidence even after trolling through the versioning system that IBM uses to keep AIX source in.”

Not so. So much of the case was deemed confidential that nobody in the public really knows much of what either party’s experts said or didn’t say regarding the copyright infringement issue.

At *this* point in the action, you’d have to be an idiot to put any money on SCO. But if they had been deemed the copyright owners, it would be a different story.

Bruce Ediger (profile) says:

Re: Re: Re: Actual Copyright Issues playing out

So much of the case was deemed confidential that nobody in the public really knows much of what either party’s experts said or didn’t say regarding the copyright infringement issue.
Really? Really? What about http://en.wikipedia.org/wiki/SCO_v._IBM#Discovery?

If Wikipedia has it wrong, it’s your obligation to go change it to The Facts. Otherwise, I’m calling BS on your assertion.

Bruce Ediger (profile) says:

Re: Re: Re:3 Actual Copyright Issues playing out

Temper, temper.

Second, nothing in that link refutes a single thing I said.

The link does say this:
In December 2003, near the beginning of this case, the court ordered SCO to, “identify and state with specificity the source code(s) that SCO is claiming form the basis of their action against IBM.” Even if SCO lacked the code behind methods and concepts at this early stage, SCO could have and should have, at least articulated which methods and concepts formed “the basis of their action against IBM.” At a minimum, SCO should have identified the code behind their method and concepts in the final submission pursuant to this original order entered in December 2003 and Judge Kimball’s order entered in July 2005.
Can you honestly say that sounds like SCO had any evidence of infringement?

Now I see what your game is: “quibbling”.

You’re probably strictly, technically correct in writing that “nobody in the public really knows much of what either party’s experts said or didn’t say regarding the copyright infringement issue”. Very sly, very tricky, strictly correct, but wrong in the original, fun-to-see-copyright-infringement-played-out context.

The Magistrate and the Judge of the case did have access to all of that, and still ruled that SCO had little in the way of evidence. One can safely assume, even though we may not know exactly and precisely what the experts said, that SCO didn’t show a whole lot of evidence of infringement.

Thanks for playing! What do we have for the losers, Johnny?

Anonymous Coward says:

Re: Re: Re:4 Actual Copyright Issues playing out

I tend to take words by their meaning and attempt to use them accordingly. If you consider that “quibbling,” so be it.

SCO and IBM were ordered to exchange expert reports regarding copyright infringement, and that link doesn’t address them.

My *point* is that it would have been informative, at the least, to get a public opinion based on all the confidential evidence regarding the many interesting copyright issues, instead of relying on how normative (i.e. “SCO *should* have done X”) Wikipedia articles “sound.”

Bruce Ediger (profile) says:

Re: Re: Re:5 Actual Copyright Issues playing out

Why the emphasis on “expert reports”? Those of us with even a smidgen of programming experience don’t need an expert to read the entrails of the code and interpret it for us. Show me the supposedly infringing code, and I can make my own judgement.

Also, SCO has amended the complaint at least twice that I can see, seemingly de-emphasizing “copyright infringement” as a cause of action at each amendment. That, too, tends to indicate that even SCO didn’t think much of the alleged infringements as time passed, and discovery progressed.

Anonymous Coward says:

Re: Re: Re:6 Actual Copyright Issues playing out

My emphasis on expert reports is because they were never (to my knowledge) made public, so anybody saying there was/wasn’t any infringement is doing so based on less than full information (unless they’ve somehow seen all the nonpublic information).

Adding lots of various claims in a massive litigation claiming up to $5 billion in damages is not abnormal, nor does it (usually) indicate lack of faith in the original claims.

But, since we are never likely to get a public opinion on the infringement questions (as opposed to ownership questions), people will continue to come to conclusions based on small bits of information and innuendo. Such is trial in the court of public opinion.

abc gum says:

Re: Re: Re:3 Actual Copyright Issues playing out

AC -> “But if they (SCO) had been deemed the copyright owners, it would be a different story.”
AC -> “nothing in that link refutes a single thing I said.”

from the wikipedia link:

Controversial code

At a reseller show in August 2003, SCO revealed a sample of alleged copied code. This was later shown to be originally released under a BSD License.[56]

UNIX creator Dennis Ritchie confirms that either he or Ken Thompson wrote the atealloc code, which is released under the BSD license.[59][60] It is claimed that SCO removed the original license text from Unix source (such as the Berkeley packet filter), allegedly violating the BSD license.[61]

– So, not only did SCO lay claim to code they had no right to, they also infringed upon the copyright of said code. If it had been determined that copyright was transfered in the sale many years ago, the BSD copyright would not have been affected. I do not understand why you would think otherwise.

Anonymous Coward says:

Re: Re: Re:4 Actual Copyright Issues playing out

This really supports my point. People that are following this case are forming opinions based on slight snatches of information that are public and characterizations of intermediate court rulings.

I think getting definitive rulings on some of the intersting issues in this case would have benefitted people’s understanding of how copyright law applies to such derivative operating systems (not intending to use that term to mean anything from a liability standpoint).

abc gum says:

Re: Re: Re:5 Actual Copyright Issues playing out

I fail to see how my prior comment supports your point.

Claimimg rights to something that is obviously not yours and then taking others to court claiming they infringed upon what is not yours … is simply glossed over with your statement about how “People that are following this case are forming opinions based on slight snatches of information”

This is not a “slight snatches of information”. It looks more like fraud to me.

“I think getting definitive rulings on some of the intersting issues in this case would have benefitted people’s understanding of how copyright law applies to such derivative operating systems”

Maybe you will get your wish and IBM will pursue SCO for damages. On a side note, Linux is not a derivitive work.

Anonymous Coward says:

Re: Re: Re:6 Actual Copyright Issues playing out

“is is not a “slight snatches of information”.

Unless you know what was exchanged by the parties and deemed confidential and can compare that to the publicly available information, I don’t know how you can say that with any sort of confidence.

“On a side note, Linux is not a derivitive work.”

In a copyright sense, that’s a complicated question. I don’t think there’s any doubt that it is “derived” at least in part from prior Unix-type operating sytems, though, is there?

PaulT (profile) says:

Re: Re:

“the actual copyright infringement issues”

That was the point actually – there were none. After a few years of trying to get SCO to reveal the “thousands of lines” of infringing code they’d found, it was eventually revealed that there were only about 23 lines. Of these, most were uncopyrightable declarations and many of them were public domain material. Groklaw has a full history if you want to read up.

This is why the Microsoft conspiracy theories play so well (they have been confirmed as investors) – not revealing the actual “infringement” for a few years helped shed doubt on open source at the time MS was losing marketshare to Linux and other open source products.

“all the Novell execs from the time said they thought they transferred”

Irrelevant. What matters is what the contracts actually say, and the judges ruled on what was in the contracts, not what somebody thought they might have done 20 years ago.

Anonymous Coward says:

Re: Re: Re:

What makes you think SCO publicly-declared all its evidence of alleged copyright infringement? Groklaw is a good source for documents, but not for unbiased analysis.

I certainly agree that the language of the contract is paramount, but as a practical matter it can be hard to convince a jury that a contract said something different than what most of the people involved in the deal thought.

Bruce Ediger (profile) says:

Re: Re: Re: Re:

What makes you think SCO publicly-declared all its evidence of alleged copyright infringement?

I don’t understand why they didn’t. If the issue is “disclosing trade secrets”, then just publicly declare things like: “linux kernel file src/arch/x386/vm/blahblah.c, lines 123-234” and give the corresponding Sacred Unix SysV file name and line numbers.

Since both parties have a SysV source license, they can each double check, without ever filing the source code itself. In short, publicly declare something. As near as I can tell, they declared nothing, not file and line number, absolutely nothing.

Since SysV is copyrighted, if the issue isn’t “revealing trade secrets”, they should have the ability to disclose the text of the code.

As I understand civil trials, which this was, they have to declare all their evidence beforehand, or risk the near certainty of having any such evidence disallowed. So, yes, it’s quite puzzling as to why they didn’t publicly declare anything as infringing.

IT Expert says:

Novell cleared. SCO loses because the contract didn’t transfer the copyrights. No big surprises there.

Even so, it’s hard not to feel sympathetic for SCO. Even though they didn’t have all their legal technicalities in order, so couldn’t win the case, most will agree I think they won a moral victory, and based on their continuing support for members of the public, in the court of public opinion too.

Anonymous Coward says:

Re: What moral victory?

A “moral victory”? I would love to know how you came to this conclusion. SCO sent out letters demanding that all Linux users pay them (per CPU) for Linux, using copyrights that were clearly excluded from the relevant purchase agreement as the rationale.

What moral victory has SCO won?

I haven’t seen a lot of support for them in the “court of public opinion” either, at least not from anyone who wasn’t a known shill.

Kestrel says:

What a *GREAT* Day

Oh – what a fantastic day!

I can remember the drea of working on SCO UNIX back in the late 1980’s – what a terrible product then… And from what I have heard since, it just never improved much. Hence now I understand why they would want to put their wretched hands on Linux…

Sympathy for SCO? !!!! WTF !!! ??? I *burned* my SCO software kits years ago. What a *** waste!

Anyway, 2 points:

– Whoever the lawyer was that consummated the original sale from Novel to SCO (on SCO’s behalf) is in deep ca-ca now! Whoever (s)he was, overlooking the fact that the sale did not transfer title of copyright on the UNIX OS was just plain stupid.

– As for the rank and file being hesitant for migrating lock-stock-and-barrel away from Mico$oft products to LINUX: SCO’s accusations and assertions never brought pause to *any* executives that I knew as far as migrating to LINUX. What brought pause were the support issues. For instance, right now, Samba 3-5-3.61 for FC13 has a memory hole the size of a Greyhound Bus, and no one appears to be working on the problem.

Anonymous Coward says:

Re: What a *GREAT* Day

“Whoever (s)he was, overlooking the fact that the sale did not transfer title of copyright on the UNIX OS was just plain stupid.”

Seriously. I think that’s what happens when you have a corporate attorney without IP experience drafting an agreement for an IP-based business.

“As for the rank and file being hesitant for migrating lock-stock-and-barrel away from Mico$oft products to LINUX: SCO’s accusations and assertions never brought pause to *any* executives that I knew as far as migrating to LINUX. What brought pause were the support issues. For instance, right now, Samba 3-5-3.61 for FC13 has a memory hole the size of a Greyhound Bus, and no one appears to be working on the problem.”

That might be so, but for all the benefits of an “open-source” or “crowdsource” model, the risk of this type of suit (i.e., somebody contributed something they shouldn’t have) is a significant problem in my mind.

Anonymous Coward says:

Re: Re: What a *GREAT* Day

“That might be so, but for all the benefits of an “open-source” or “crowdsource” model, the risk of this type of suit (i.e., somebody contributed something they shouldn’t have) is a significant problem in my mind.”

That is the goal of their FUD campaign

Anonymous Coward says:

Re: Re: Re:2 What a *GREAT* Day

“it is my independent judgment that the potential for unauthorized/improper contributions is a risk of any crowdsource/open source model.”

And your statement implies it is impossible to have “unauthorized/improper contributions” in closed source?

I call BS

Anonymous Coward says:

Re: Re: Re:2 What a *GREAT* Day

That’s BS.
You, (and everybody, including propietary code owners), can review the source code, and see for yourself.
The risk is higher in propietary code, since you cannot check the source.
It is a lot more likely that OSS code will end up copyed inside propietary products, than the opposite.

Anonymous Coward says:

Re: Re: Re:3 What a *GREAT* Day

Your point about being able to review the code is valid, but being able to review the source isn’t enough to know whether something is copied. You have to have the copied “something” as well to be able to compare. And with an open-source model there are a lot more parties to check up on if you want to check whether they *actually* had authority to contribute X, Y, and Z.

Certainly proprietary code is not risk-free, but if you’re dealing with a single party you’re probably better able to get them to take on the risk if their product is found to be infringing.

abc gum says:

Re: Re: Re:4 What a *GREAT* Day

“if you’re dealing with a single party you’re probably better able to get them to take on the risk if their product is found to be infringing.”

Now you are blowing smoke.
Indemnification was the Microsoft FUD battle cry back when this mess started. This silliness was shot down many times.

Anonymous Coward says:

Re: Re: Re:5 What a *GREAT* Day

“This silliness was shot down many times.”

As James Brown said, “sayin’ it and doin’ it” are different things. If you’ve got some great explanation as to why meaningful indemnification is just as easy with an open-source model, I’m interested.

abc gum says:

Re: Re: Re:6 What a *GREAT* Day

“If you’ve got some great explanation as to why meaningful indemnification is just as easy with an open-source model, I’m interested.”

Just as easy? – What does that mean?
In these times of lawsuit carpet bombing I doubt that indemnification is possible. To claim it in a FUD campaign is just shameful.

Anonymous Coward says:

Re: Re: Re:7 What a *GREAT* Day

“This silliness was shot down many times”

is wholly at odds with

“I doubt that indemnification is possible”

If you like you some Linux and hate you some SCO, that’s fine, but don’t pooh-pooh substantive opinions on real issues if you’re not going to provide substantive support in response. (please)

Bruce Ediger (profile) says:

Unlike for Microsoft?

the potential for unauthorized/improper contributions is a risk of any crowdsource/open source model.

How about this one, where Microsoft let some code into SQL Server that actually did make end user’s liable for treble damages:
http://www.theregister.co.uk/2003/02/20/sql_server_developers_face_huge/

That particular danger exists no matter who develops it, and appears to be a problem in the patent/copyright system, not the coding processes.

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