And we thought they were dead :-)

Jerry Feldman gaf at blu.org
Sun Jul 11 07:51:14 EDT 2010


On 07/10/2010 11:32 AM, Jeffry Smith wrote:
>
> 1.  Remember, everyone has the ability to sue anyone for anything at
> any time in the US.  Whether  they'll be successful is a whole 'nother
> matter ;).
>
> 2.  The crux is that tSCOG does NOT own the copyrights.  I suspect the
> APA (& Amendment 2) was worded they way it was because NO ONE knows
> who owns what - the early UNIX history, due to the laws at the time,
> the AT&T monopoly agreements, academic freedom, etc, resulted in lots
> of folks owning the code, some in the public, some by AT&T, some by UC
> (BSD code), some by whoever contributed.  So when Novell sold the
> agency to SCO (Santa Cruz, not tSCOG), Amendment 2 was, in my opinion,
> worded such that if it turned out the copyrights WERE needed, research
> would be done, and the appropriate transfers made.  Since SCO in 10
> years never came forward asking, I don't think anyone bothered
> researching it.
>   
Exactly, but while the courts have found that the APA (& amendment 2)
did not transfer the copyrights this is still under appeal. The reason
that the copyrights were withheld according to testimonies, is that SCO
at that time could not afford the asking price, and the Novell BoD
wanted protection in the case SCO filed for bankruptcy. I happen to
think that Caldera International did not do due diligence when they
bought the Unix division from SCO.
> However, 2 judges and a jury so far have all said they didn't transfer
> to SCO, and therefore not to tSCOG.
>
> 3) until tSCOG can show that there is code in there that a) they own
> the copyright to, and b) that they did not authorize the incorporation
> of the code into Linux (as opposed to the Caldera code that is / was
> in there, put in there by Caldera employees under direction of Caldera
> and Ransom Love to make the improvements), no worries.  tSCOG in the
> IBM suit managed to identify something like 300 lines (we don't know
> what the lines are - that's under seal) that they MIGHT be able to
> claim copyright over.
>   
Agreed. The original issue in the IBM case is the 3 products tSCOG
claims violate the IBM Unix contract as derivative works. These are SMP,
NUMA (through IBM's acquisition of Sequent), and JFS (which IBM claims
is the OS/2 version, not the Unix version). IBM deposed a number of
people trying to show that they had a waiver from AT&T. In any case, the
SCO vs. Novell verdicts trump all of this. I suspect that there is very
little chance that this case will ever see the light of day.
> 4.  The only other claim they're trying to weasel in (but haven't yet,
> because they were denied their third change of their complaint in the
> IBM case) is copyright on methods and concepts - which a) are not
> copyrightable (unless some court extends copyright), and b) probably
> not patentable at this point due to the wide-spread nature.  AT&T gave
> the code away partly to enable the teaching of methods & concepts.
>
>   
If I recall, this is probably related to the original AT&T vs. BSD back
in the 90s, but this was settled out of court. If I remember correctly,
Eric Raymond wrote a position paper asserting this back in 2003:
http://catb.org/~esr/hackerlore/sco-vs-ibm.html

Basically, the 10th Circuit could either refuse to hear tSCOG's
complaint, or give them another hearing. The panel will be a bit
different since, Judge McConnel has left the bench to become Director of
Stanford Constitutional Law Center.

-- 
Jerry Feldman <gaf at blu.org>
Boston Linux and Unix
PGP key id: 537C5846
PGP Key fingerprint: 3D1B 8377 A3C0 A5F2 ECBB  CA3B 4607 4319 537C 5846


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