On Saturday 08 March 2003 02:21 pm, Joeb wrote: > On Sat, 8 Mar 2003 17:11:23 -0500 > > Greg Meyer <[EMAIL PROTECTED]> wrote: > > On Saturday 08 March 2003 04:53 pm, Joeb wrote: > > > Not to disagree with you Todd, but when you say "They get their > > > billion..." are you referring to SCO or the lawyers (not that it makes > > > much difference)? :) > > > > > > Way I see it, there are a couple of questions. Q1) Was IBM entitled to > > > use the code? A1) Yes, that is not part of the litigation. Q2) Was > > > IBM entitled to release said code under the GPL? A2) Maybe, that's > > > what the courts will now decide. Q3) What are the ramifications for > > > Linux? A3) Could be as simple as said code must be removed - as with > > > most things, there are several implementations that are submitted for > > > the kernel, so a different one might need to be chosen. Q4) If IBM was > > > not entitled to release said code, what are the damages? A4) That's the > > > tricky part, since SCO Unix's value has increased along with the work > > > IBM did with Linux, it's hard to argue damages (especially if the > > > offending code is removed). Remember, most of the code is in the 2.5 > > > Kernel which isn't officially released yet. Finally, Q5) What are the > > > long term ramifications? A5) IBM may have to pay some money, Linux > > > will continue to grow (although with some changed modules), SCO will > > > continue to go down the tubes and most importantly, the lawyers will > > > laugh all the way to the bank. > > > > The suit doesn;t just talk about code, but methods and concepts as well. > > If not one single piece of UNIX source code ended up in Linux, they are > > trying to say that the way it works still infringes on it's IP. I find > > that quite specious. > > > > The way I read your response, you seem to assume that code actually made > > it into the kernel. This has only been alleged, not proven. The suit > > also refers to Linux capability today in production. It would seem to me > > that if any of this were true, but restricted to the 2.5 kernel, then > > damages would be significantly less since it is not in widespread use. > > > > -- > > Greg > > I agree it is a bold leap to say that methods and concepts are infringed, > because even with the work that IBM has contributed, the methods and > concepts were there before IBM's participation. Yes, the 2.4 kernel has > better memory management than the 2.2 kernel, but memory management was > still part of the 2.2 kernel (that's just for example, I don't know if SCO > is saying memory management is one of the IP issues). > > You are correct in the way you are reading my response in that I am > assuming it deals with the kernel (as that is the only part that is > actually "Linux" and other applications normally included in distributions > haven't been mentioned). I was under the impression that most of IBM's > contributions were made after the 2.4 kernel was released, but I could > easily be mistaken. Even so, if SCO is found to be correct, then the > current 2.4.x kernel would be tainted. That still is not a show stopper as > I said in my earlier post, for just about everything in the kernel, many > submissions are made. Worst case for the kernel would be that 2.6 would be > delayed to roll back tainted code and replaced with alternative "clean" > code. I know that isn't a trivial task, but what it actually means is that > even with a worst case, SCO wins all, Linux, as we know it would still > survive (and SCO would still be going down the tubes). > > Again, IANAL, but another issue, particularly if SCO claims code further > back than 1995 is tainted (when they bought UNIX back from Novell) is why > they didn't take issue with the IP rights then. Since, they had a Linux > distribution, they were fully aware of what was going on inside of it (or > should have been). I have been told that one possible outcome of this suit > is the possibility that the courts could say, that if you don't take action > to enforce IP when it is first known to be misused, you implicitly allow > it's use. Actually, this argument could hold for code even after 1995. If > so, then SCO's suit boils down to they are upset that IBM broke a contract > with them. But, they didn't sue for breach of contract, they sued for lost > IP. One would have to ask why and the answer is how do you award damages > on a speculative R&D contract when there isn't any market shown to exist? > You can't. IP on the other hand, you can show damages. But, as I stated > earlier, SCO's market value h > > Now for the really interesting part. Let's assume that SCO is correct and > IBM has tainted linux with IP that they did not own. Isn't that same > tainted code in United Linux which SCO is part of? So what does SCO do > now? They could allow United Linux to use the code with a restricted, > non-open license, but if it is tied to the GPL'd kernel, then you couldn't > release your own kernel with a more restrictive license than the original > kernel had, could you? So, if SCO is successful in their argument against > IBM, they would still need to explain how there were damages since they > have allowed their IP to be used in UnitedLinux which is release under a > GPL (regardless of IBM, since SCO has a stake in UnitedLinux and there IP > is in the product, they have released their IP under a GPL). > > Anyway, as I have said before, IANAL, so I'll let the free software > foundation make their arguments. I'm sure they will do a much better job > than I could do! > > Joeb > > restrict it and everyone would still have access to it (so again, where is > the damage to SCO).
Unless they have a patent on some look and feel or technique that is comprehensive enough to cover this, or they see a DIRECT plagiarism of copyrighted code, they have no case. That is nothing new. Moreover, if they do hold patent to something, the chances are probably in excess of 90% that the patent can be proven to be crap. PAtent examiners are overloaded and are rewarded on the basis of patents granted, not for crap patents refused. Even in the 1920s, patents were very iffy things, and it was perhaps the Universal Oil Patent suit that had more to do with breaking the Standard Oil Trust than the government's antitrust prosecution. Basically patents ARE worthless until proven in court, but that doesn't matter, because a patent suit is such a drawn-out, expensive, lose/lose scenario that everyone wants to avoid it except for the threat of a land mine beneath anothers feet. My guess is that Scaldera is defunct and that this is a nuisance value suit to squeeze a last minim of cash out of a dying company before the executives vanish leaving the stockholders holding worthless paper. I wonder where the settlement from Microsoft got spent.... I do have some copies of transcripts from that trial, and I would encourage others to obtain them. The plaintiff in that old suit is prohibited from divulging particulars by the settlement agreement, but they are still public record.... Even though basically the defendant was shown to directly plagiarize the code, the suit took years and was settled out of court to avoid even more years of litigation But I don't think anyone is going to bring a generic linux box to court running kernel 2.4 or 2.5 and some Scaldera tech is going to be able to type in a code that reveals a Unixware copyright message. Certainly if Scaldera had viable and salable products, taking on IBM would be a terrible move, because the "patents" owned by IBM could be used to repeatedly challenge their product and tie up operating capital in escrow for the suration of the patent "suits". IBM most likely owns those patents as a defensive measure, to help prevent such suits as this. By filing a suit of this nature, Scaldera is admitting that the company is no longer a player in the market. And we, the computing public, get to watch the nasty little dramas while Smith-Corona owns the idea of text inserted between other text Apple owns all desktop theming Unisys owns LZW compression (which is actually a mathematical fact) to make gif and tiff files A 7 year old boy holds patent on going sideways in a swing British Telecom own(ed) hyperlinks (that one has thankfully expired). Attorneys get rich producing nothing but paperwork for the USPTO to process. Civileme
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