Zombie SCO Loses Again; Is It Dead Yet?
from the please-be-dead dept
We had hoped that after SCO lost its lawsuit (yet again) last summer that the whole SCO vs. Linux legal fight would finally, finally, finally be dead (finally). But, of course, that was wishful thinking. Zombie SCO came back for another whacking, and , as mentioned on Slashdot, another whacking it got. The ruling is worth reading if only for a nice, concise summary of the entire legal dispute and SCO’s various attempts to reanimate its very dead corpse.
My favorite part may be a rather minor point in the larger fight, but part of the legal fight involved SCO claiming slander against Novell for telling the world that SCO didn’t actually hold the copyrights for UNIX. SCO tried to claim that this hurt its business, and Novell reasonably countered that the thing that really hurt SCO’s business was its own actions — and, as part of that, showed the jury a BusinessWeek article about how SCO was “The Most Hated Company in Tech.” SCO claimed this was hearsay, but the court didn’t buy it, noting that it was one minor image seen by the jury over a much larger trial, but, more importantly, noted that “there was repeated testimony and argument over the course of the trial pointing out the unpopularity of the SCO Source program.”
While there are lots of lessons to be learned from the nearly decade-long SCO legal fight to claim control over Linux and demand a toll from just about everyone, one key lesson is that going legal is no way to build a business that people like or respect. The crux of a strong market system is that it enables transactions where all parties are happy with the results, and all parties feel they came out better off. When your entire business model is to force people to pay, rather than providing real value for which they want to pay, you’re positioning yourself for failure.
Filed Under: copyright, linux, slander, unix
Companies: novell, sco
Comments on “Zombie SCO Loses Again; Is It Dead Yet?”
When will the MAFIAA learn?
Quote’ “When your entire business model is to force people to pay, rather than providing real value for which they want to pay, you’re positioning yourself for failure.”
When will the MAFIAA learn?
Re: When will the MAFIAA learn?
They will pull a Saif “Victory or martyrdom!”.
I’m hopping they go the martyrdom way.
Re: Re: When will the MAFIAA learn?
The downside is as we see here –
Even if we kill them, they come back as zombies.
The question is will they still have enough money for Congress to ignore the rotting smell and the randomly eaten interns?
Re: When will the MAFIAA learn?
A business model of forcing people to pay seems to be working out rather nicely for patent trolls. They do force people — who do not want to pay — to pay up. They have had numerous very large paydays. They intend to continue, regardless of how unpopular they are and regardless of how much damage they do to the economy. They have carefully structured themselves as judgment-proof entities, run by persons whose identity cannot be ascertained. When the cops come knocking, there is nobody home, but judges still listen to them.
The MAFIAA is presumably paying close attention, then they will work out something. It will be nasty.
Re: Re: When will the MAFIAA learn?
Like all successful parasites they target a large host that has the resources to pay and survive. The MAFIAA has tried targeting small individuals – but this is expensive to do and does not bring in enough actual revenue to cover the costs (prediction – they will never recover their costs from the Jammie Thomas case).
The shakedown approach as pioneered by Davenport-Lyons, ACS Law and USCG has mostly resulted in slapdowns from the courts and will most likely go away (except in its completely illegal pure-scam format where no actual lawyers are involved and the scammers don’t even hold any copyrights).
My guess is that if they want to actually make money they will target Google, Facebook and the big ISPs – problem is if they fight back.
Where the hell are SCO getting the money to pay their lawyers?
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Microsoft
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Microsoft quit paying some time ago. SCO files for bankruptcy in Sept 2007 on Friday before their long sought after trial was to begin the following Monday, Sept 17 IIRC.
The real (and fraudulent) reason for filing for bankruptcy was not that SCO was insolvent, but rather that they were getting handed a series of devastating decisions from the court right before trial was to begin. SCO does not own Unix — that decision alone sinks their entire case against IBM. (Lack of standing. Like SCO, neither you nor I can sue IBM for allegedly infringing Unix IP, because we don’t own Unix IP — even if it had been stolen, which it had not, and no evidence had ever been introduced.)
Ignoring that SCO never owned Unix to begin with, SCO had delayed and stalled for years on introducing evidence that anything had been copied into Linux. For the third and final time, the court ORDERED SCO to produce all allegedly infringed material by Dec 22, 2005. That date came and went.
Other motions were filed and argued. SCO’s “expert” depositions testified that “all of Linux infringes”, etc and other handwaving. Yet there had never been any evidence introduced to back up those grandiose statements. In the end, the magistrate judge threw out 2/3 of SCO’s claims due to lack of evidence. Of the remaining 1/3, the judge expressed skepticism. The jist was: I doubt you can possibly win this, but technically I can’t throw it out on summary judgement.
That’s only the tip of the iceberg. There are so many facets and twists and turns to the story, it is truly a Gordian knot of litigation.
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“no evidence had ever been introduced.”
That’s not actually true w/r/t whether Linux contained copied protectable material from Unix. Some evidence was introduced under seal. Of course, whether what it shows is persuasive or not can’t really be publicly assessed.
Re: Re: Re:2 Re:
IBM responded to all of it, and their response was amazing.
Don’t try to keep the meme alive that there might be some infringement. If there were, then SCO would have quickly gotten on with their case and collected their $5 Billion dollars.
The fact that SCO did everything to try to delay and prevent a trial for years speaks volumes about what SCO believes about their purported evidence of infringement.
Re: Re: Re:3 Re:
“IBM responded to all of it, and their response was amazing.”
I have seen IBM’s response, and I found it only “amazing” in the sense that Cravath lawyers wrote something so mediocre.
“Don’t try to keep the meme alive that there might be some infringement. If there were, then SCO would have quickly gotten on with their case and collected their $5 Billion dollars.”
Um, they couldn’t/can’t do that if they don’t own the copyrights. Copyright ownership is a separate issue from whether protectable material was copied. The copyright ownership issue was settled adversely to SCO before any ruling in the IBM case regarding whether Linux contained copied protectable material (or whether a jury could make such a finding).
“The fact that SCO did everything to try to delay and prevent a trial for years speaks volumes about what SCO believes about their purported evidence of infringement.”
What?
Double tap
Rule #2 – Double Tap
Re: Double tap
An excellent yet subtle reference!
Zombies!
As a card-carrying zombie, I resent of your (fair) use of the term when describing SCO. As everyone knows, we zombies have BRAINS!!!
Re: Zombies!
I see
Re: Zombies!
I can imagine a zombies brain … must run just as fast as they walk.
Linux != UNIX
Re: Re:
SCO sued Red Hat over Fedora. SCO sued both UNIX and Linux users.
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Your memory has grown dim over the years: Red Hat sued The SCO Group, seeking a declaratory judgment. You should know where to find the info to verify that….
Re: Re:
GNU – Gnu is Not Unix
or if you like
!(Gnu instanceOf Unix)
“one key lesson is that going legal is no way to build a business that people like or respect“
But that assumes SCO intended to be liked or respected. I’m pretty sure most people agree with me that the entire purpose of the SCO lawsuit was not to create a viable business model selling Linux (remember all the stories on Slashdot of people trying to buy it from SCO as a joke but couldn’t?).
The purpose of the SCO/Linux lawsuit was to hurt Linux. Luckily, that didn’t work. This time.
Re: Re:
“The purpose of the SCO/Linux lawsuit was to hurt Linux. Luckily, that didn’t work. This time.”
I think it did; think of all the businesses that would’ve used linux/*nix in the past . . .decade?, but were scared off by the lawsuit, or the idea that they might be hit down the road for an arbitrary fee, or whatever.
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I’ve seen this claimed even by desktop users. I’ve no reason to doubt it.
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This is unlikely to be the case, because there are MANY flavors of linux that would not be affected by this lawsuit, and those are actually used less than the ones that are… I would suggest SCO doesnt matter one bit to anyone.
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The local university, when implementing a campus-wide net of computers, chose windows over linux for this exact reason. Much to the chagrin of the computer science dept.
But, uh, more to the point, microsoft, a prominent backer behind SCO as shown by the halloween papers, thought it was important enough to dump/help them obtain more than $100,000,000 in order to continue fuelling the lawsuits, and microsoft has internally claimed that the lawsuits are the cause of significant market capture for microsoft.
I forget whether it was 2% or 3%, or maybe .2%, but microsoft thought it was significant, and with the ripple effects of linux, who knows where we might have been today if the lawsuits didn’t exist?
Separately, I believe it was the linux kernel that was attacked? Then all of linux would be effected, but not all of *nix.
Indeed, I remember there were specific libraries and kernel re-writes that promised not to effect your system, that were ‘sco-safe’. But I was a youngun’ back then, maybe my memory’s not so good.
But besides that, the most popular distributions were attacked, (and if you’re a business, you want support for your computers. If you can’t go with redhat, what other linux dealer was around at the time to support you?), and it was uncertain how far the lawsuits would go, because they even sued IBM based on proto-unix code; The details were kept locked up in the lawsuit, so no one was quite sure what was unsafe, other than completely re-written code.
Re: Re: Re:2 Re:
Why do I have a different gravatar? o_0
I’m the AC at 5:40am.
And I’m also Freak, and apparently, I can go a few posts without realizing I’m not logged in.
Re: Re: Re: Re:
“there are MANY flavors of linux that would not be affected by this lawsuit,”
ORLY? Would you be willing to bet your company’s financial solvency on that supposition?
So when are Darl Mcbride and friends going to be prosecuted for their stocking kiting scheme?
And, do those poor suckers get their $699 dollars back?
http://www.eweek.com/c/a/Linux-and-Open-Source/Torvalds-Slams-SCO/
If you’ve never read this article, its the one where Linus says about SCO: “They are smoking crack”
I used to have this issue of E-week, I probably should have kept it. I always thought that SCO was full of it, and probably even said myself they are on crack.
He knew back then how far SCO’s case would get.
And he was 100% correct.
He even states “or code that just looks similar because it is based on public standards.” which was found to be true when Kevin KcBride leaked samples of the code and the parts that were alleged to be covered under copyright were *standard practices for writing code*; not to mention code that was not the same, but performed the same functions, thereby blowing the “cut and paste” claims out of the water.
It is troubling to me to think that Linux’s reputation may have been damaged. Until I read some of the comments above there was no question in my mind about Linux’s reputation, I knew from my own experiences with Linux that SCO’s arguments were baseless. I know, however, after having been a visitor to this site for the last year and a half, that some companies get scared off when a product or company is part of any litigation, as that leads to uncertainty about the product or brand in question. Thinking about it now, I can totally see why Microsoft would ante up money to SCO to help it further fund the lawsuit. As such, that would further the uncertainty over the Linux codebase and drove more customers to Windows solutions over the years. It sickens me to know that this could have happened. Again, in my mind, this was never even a possibility, because I myself had enough faith in Linux/Novell prevailing, and I thought every company would laugh at SCO. I guess this was not the case and a sad result from this litigation.
Re: Re:
SCO lost on the copyright ownership issue, so that is all said and done.
But the notion that that loss somehow means all the other claims were false is not really supportable.
If something becomes a “standard” after it is created by the copyright owner, that doesn’t necessarily mean the copyright owner loses his copyright in that material. I think the copying of such “standard” material and header files and whatnot is one of the most widely-misunderstood copyright issues surrounding the Unix/Linux fight.
Re: Re: Re:
I guess you haven’t seen the evidence then. Or maybe you have.
http://www.mcbride-law.com/2010/07/09/lanham-act-claims-extend-to-false-statements-by-implication-and-innuendo/
If the way to write code is standard because thats how the syntax of the language dictates it is to be written, how can you have a copyright on that? If someone needs to code a function and its written similarly, but not exactly the same, (as much of the evidence in the link provided will show), how is that infringement? I might agree to your argument if it was more like cut and paste, but its not. The functions may act the same, but they are written differently.
for example, the line in http://www.mcbride-law.com/wp-content/uploads/2010/07/Tab-332.pdf :
else if (offset <= 0 || offset > elf->e_size) {
is alleged to infringe on this line
if (off == 0 || elf->ed_fsz < off)
huh what? The only line that is the same on those two files is “size_t”. Oh, and “return 0;”
That alone makes the rest of the file infringe?
Those are written and coded differently. Like I said, and Linus, standard practices. IE: syntax.
But then again, they didn’t assign the copyrights to SCO so SCO has no rights to exert. I’m curious to know what other claims SCO might have had since it didn’t have ownership of the copyrights? As stated by Kevin McBride: “But the court in SCO v. IBM will probably never decide whether use of this (and all the other UNIX code) in Linux was, or was not permissive, because in the SCO v. Novell case, the jury decided in March 2010 that Novell owns the UNIX copyrights, not SCO. “
Since the copyright owner is Novell, they seem to be allowing the “standard” to stand as it is.
Re: Re: Re: Re:
“If someone needs to code a function and its written similarly, but not exactly the same, (as much of the evidence in the link provided will show), how is that infringement?”
If the “function” needed is interoperability with the code you’re accused of infringing, that fact that you need to copy to achieve that is not a defense to infringement.
“I might agree to your argument if it was more like cut and paste, but its not. The functions may act the same, but they are written differently.”
Well, there were examples of “cut and paste,” even if that particular example you linked to doesn’t fit that description.
Of course, “cut and paste” is not necessary for a showing of copyright infringement. Copying the overall structure of a work can, in some cases, constitute infringement.
“But the court in SCO v. IBM will probably never decide whether use of this (and all the other UNIX code) in Linux was, or was not permissive, because in the SCO v. Novell case, the jury decided in March 2010 that Novell owns the UNIX copyrights, not SCO.”
This is accurate, IMO. Unfortunately, I think many take the whole SCO saga as indication that the kind of alleged copying at issue is ok, when no court or jury really decided that.
There was NO copying of protected code
It’s depressing but unsurprising to see these allegations of illicit copying still flying around.
Between the Kevin McBride “revelations”, decoding of poorly-obfuscated powerpoint slides, deep analysis of the remaining allegations in SCO vs IBM and the now-public details of the BSD/AT&T settlement, it is clear that nothing is in the Linux kernel that is protectable.
Sure, quite a few bits are the same as Unix System V. It turns out those bits actually came from BSD and were illicitly copied into Unix by AT&T, with removal of the BSD copyright notices. Not the other way round.
Re: There was NO copying of protected code
I find it sad that people still act as if it was conclusively determined that there was no copying of protected code (or protected non-literal material).
The case could have been an opportunity for a court to make a general ruling on whether “cloning” in general is ok, or whether copying of certain bits of literal material (e.g., header files, etc.) is ok.
That never happened, but many people seem to assume that the copyright ownership ruling answered those questions as well.
The scox-scam was a success for Microsoft
It was really a Microsoft scam all along. Microsoft funded the entire thing. Microsoft was behind scox every step of the way.
You have to remember: scox was dead anyway, even before scox filed the lawsuit. Scox had never been profitable, and was gushing red ink, scox’s share price was in the toilet. Scox would not have lasted two more years, if not for all that Microsoft money. Scox had everything to gain, and nothing to lose.
The idea of the scam was to smear Linux, to make people afraid to use Linux, and – especially – to make companies afraid to contribute to Linux. In that, I think the scam was fairly successful.
You have to remember, to Microsoft, $100 million is nothing. Microsoft spends more than that on one of their idiotic commercials. I think Microsoft, easily, got their money worth out of the scox scam. The scox execs did well also.
IMO: those who think the guilty were punished, don’t know what they’re posting about.