Furthermore, would you get involved with SCO in any fashion?

Only in a buyout scenerio like the one you already described! Buy it, rape it for IP, throw the rest down the iLoo. <big grin> Where is IBM when you need them? Big Blue could be a real hero in this case. -- John LeMay KC2KTH Senior Enterprise Consultant NJMC | http://www.njmc.com | Phone 732-557-4848 Specializing in Microsoft and Unix based solutions

begin James Ogley's quote: | Have SCO gone after RMS and the FSF yet? no, but they are mentioned in the lawsuit. rms is rather comically described as "a former MIT professor," and the lawsuit claims that the gpl was formulated to protect linux. one gets the impression that david boies is over-rated. -- dep http://www.linuxandmain.com -- outside the box, barely within the envelope, and no animated paperclip anywhere.

Jerry Feldman wrote:

On Fri, 16 May 2003 19:27:49 -0400 dep wrote:

...

no, but they are mentioned in the lawsuit. rms is rather comically described as "a former MIT professor," and the lawsuit claims that the gpl was formulated to protect linux. one gets the impression that david boies is over-rated. The GPL existed before Linux. Linus chose to license Linux under the GPL. RMS was never a professor at MIT, but he was employed in the AI lab.

Based on the very elementary 'mistakes' being made all over the place, one might get the impression they are deliberately setting up to fail. Totally off the wall, the conspiracy theorist in me (there's a bit of one in all of us isn't there?) wonders : - is this a way to force the end of unix code? what happens to the ip if they simply fizzle? - is this a way to drive their price down to make them real attractive? - if they are too attractive, will M$ buy them? then what? - the recent M$ lawsuit stalled their sales ... is this being sponsored to stall Linux expansion? - does M$ have a role in this? is SCO, with their old ties to M$, really a deep mole now called out?

one gets the impression that david boies is over-rated. -- dep

Ya, his track record of late ain't that hot. Just ask Al Gore. And the M$ case was wrongly focused IMHO (he is the one that oversaw that one at the beginning, right?). Lawers are better at law than technology in most cases and I have a feeling the Mr. Boies thinks he understands this stuff more than he actually may. I on the othehand have my doubts regarding his level of understanding with such things as common C/C++ language and syntax. He maybe good with juries and the process but I'm not sure that's enough. Cheers, Curtis.

Does SCO have a point in their claim or it's juts baloony bs? I can't imagine someone would be so stupid and start accusing others of stealing without any evidence but I may be wrong on this. Martin --- "Fred A. Miller" wrote:

On Wednesday May 14 2003 9:11 pm, Curtis Rey wrote:

...

On Wednesday 14 May 2003 14:58, Ben Rosenberg wrote:

[snip]

...

So, they have suspended their own distribution - aka SCOlinux and Caldera. Funny, they own both of those right? So, how can SCO be in violation with it's own product? Maybe something to do with fruit of a poisoned tree or something.

Your guess is as good as anyone else. :)

...

It's perfectly clear that SCO is desperate. They are cutting everyone of their channels. Talk about burning your bridges behind you!

They are reporting a net income of 4 million for the 2nd quarter....not a loss, so they can say that their sales are improving.....UNIX sales that is.

...

This may have ramifications for Linux - or maybe not. But one thing is sure in my mind... SCO is hurting themselves more over than anyone else. Who is going to do business with these guys after this is done? Regardless

Playing "devil's advocate," look at all the companies who DISLIKE MickySoft, KNOW what they are, and yet continue to do business with them.

...

of whether or not SCO succeeds in this one can easily see that they're done in the OSS and Linux community. No one will recommend them, support them, or have anything to do with them.

I wish, but know better. :(

...

This seems ripe for a buyout. Take what money they can, settle debts, sell the rest off. As far as the CEO, presidents, and upper echelon, well they have shown one thing. They seem to be fairly adept at sinking a business and then turning on their partners. Would you hire McBride? Furthermore, would you get involved with SCO in any fashion? They are headed down a dead end IMHO.

We'll have to see. If there's anything that is for sure in business today, it's that there are NO guarantees. :)

Fred

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Martin wrote:

Does SCO have a point in their claim or it's juts baloony bs? I can't imagine someone would be so stupid and start accusing others of stealing without any evidence but I may be wrong on this.

[snip] That is the single issue that we're all pondering. Linus was interviewd by Joe Barr yesterday, and there wasn't any definitive "yes or no" from him. Fred -- Fred A. Miller Systems Administrator Cornell Univ. Press Services fm@cupserv.org, www.cupserv.org

On May 15, 2003 05:29 pm, Vince Littler wrote:

"SCO will continue to support existing SCO Linux and Caldera OpenLinux customers and hold them harmless from any SCO intellectual property issues regarding SCO Linux and Caldera OpenLinux products."

If they indemnify their own customers in this way and then _continue_ to sell Linux, that is an anti-competitive practice, which I doubt would be

How? Every time you buy a CD the seller is agreeing to not sue you for stealing it. Doesn't mean they can't sue somebody else. You can always sell your own property.

Although the events are very disturbing for SuSE, SCO do not seem to be picking a fight with SuSE, and I would take a comment from another thread

Unless we know what SCO is claiming the safe thing is to believe they are attacking all of Linux. For that matter they may be attacking all the software written since the alleged release of thier IP by IBM. Think about it. Somebody at Microsoft sees something they like and decides to use it.

SCO also say that legal liability for the use of Linux may extend to commercial users. If this is new, are they turning the screw slowly towards

I think this is fairly normal in IP cases. Doesn't mean you're going after the end users but since it hurts the business of the people you are going after it makes them more willing to settle. Nick

On May 16, 2003 08:15 am, Dave Smith wrote:

However, if the seller sells it under a license which gives the buyer the rights to copy and distribute it freely, then anyone has the right to use that code themselves. I could have taken a Caldera CD and given it to someone at IBM, and they'd be perfectly within their rights to copy that code into the Linux kernel.

But did the seller ? You can't claim because something is hidden on a GPL CD that the person who owns the rights has given up those rights.

The point is that Caldera have continued to distribute codeto their customers which they claim to be "tainted". They have distributed this

They'll claim they did this to stop the "evidence" from being destroyed. I still want to know what they are claiming . Nick

On Friday 16 May 2003 09:53, Dave Smith wrote:

Whatever their motives were for distributing the code, they've done it. They have licensed their customers to distribute the disputed code on the CDs.

Period.

The only way in which they could revoke that license is by demonstrating that they were not entitled to grant the license it in the first place - i.e. they don't own the disputed code - and therefore the rest of their case falls to pieces.

Whether Caldera have a case against IBM and other distributions for earlier damages, I'm not sure. However, as I see it, they won't be able to prevent the continued distribution and development of Linux.

Again, IANAL, and these are my opinions, not ST's.

It would seem to me that if: 1) SCO was selling Unix code (and licensed it to IBM) and was also selling a Linux distro. and: 2) Used proper diligence to keep the two separate under their own roof, and also to properly protect their Unix rights by licensing agreements to other parties,, and: 3) The above was their intent. (that the two shall never share code) and then: 4) IBM, to whom they had licensed the Unix code, then *may* have let some of the code slip into Linux-land. I don't think it would be the burden of SCO to always look over any changes to the entire Linux-land of code for their Unix code. And I don't think, once discovered by SCO, that what they had been selling under the GPL would necessarily weaken their case. Once you discover the problem, you halt sales, which they did... and take action. What else could they do if in fact there is a legitimate complaint? Not trying to side with SCO here, but I could see a case where they *might* have a legitimate case. I guess the fact that they didn't immediately halt sales, and possibly enjoin other distros from halting their sales at the same time *might* weaken their case... but maybe not.

In a previous message, Peter B Van Campen wrote:

The GPL has NEVER been tested in court. This means that until a judge ( and even appellate judges) has ruled on the legality of the GPL, it is just a 'nice agreement' between agreeing parties.

Not true. The GPL is a licence agreement that is legally binding on all parties to it - unless and until it is successfully challenged in court. Your explanation suggests that any contract is invalid unless proved in court, whereas the true situation is that any contract is valid unless proved invalid in court. Which is why people take contracts to court - to get out of restrictions that they feel are unfair or illegal. John -- John Pettigrew Headstrong Games john@headstrong-games.co.uk Fun : Strategy : Price http://www.headstrong-games.co.uk/ Board games that won't break the bank Fields of Valour: 2 Norse clans battle on one of 3 different boards

In a previous message, Peter B Van Campen wrote:

If two parties enter into an agreement, the terms of which are written down and signed, then the agreement is only in force until one party contests the agreements legality.

No, the agreement is in force until a judge decides that it is not valid. That is, the point at which it stops being enforceable is at the point of judgement, not at the point of contention (actually, of course, once it is judged invalid, it was *never* enforceable - the judgement is restrospective). If the person contesting its legality loses, they will be liable for any and all penalties applicable for breaking that agreement, even if they did so while it was in contention.

Until a court issues a ruling the agreement is simply a "Gentelmans Bargain" and no govt agency is going to enforce it.

Again, no - until the court rules, the agreement retains all its force of law. No prudent person would violate a contract while it was in contention unless they were *very* sure that they would win the case. And no "govt agency" enforces any contract, unless you include the courts in that - they are, again, the venue where contract violators are brought to book. Contracts are legal, not federal, instruments. So, the GPL needs no government involvement at all to enforce (unless the govt is a party to it). Any enforcement would be carried out through the courts.

Legal scholars have questioned the enforcablity of the GPL

Not quite - what is at issue is not its enforceability but its validity. If it is legally valid, it can and will be enforced. If it is not valid, enforcement is a non-issue.

The most troubling aspect of the GPL? There is no 'consideration' exchanged as part of the transaction.

Depends on the juridisction involved (countries vary widely in their interpretation of such things). For example, in the UK (AIUI), a "free gift" can still be judged as goods under the terms of the Sales of Goods Act - that is, it must be of merchantable quality and fit for the purpose. John -- John Pettigrew Headstrong Games john@headstrong-games.co.uk Fun : Strategy : Price http://www.headstrong-games.co.uk/ Board games that won't break the bank Fields of Valour: 2 Norse clans battle on one of 3 different boards

In a previous message, Peter B Van Campen wrote:

Case in point: Despite the court rulings in regards to the music swapping epidemic, the US FBI is NOT going to be compelled to arrest and prosecute every file swapper.

But this is a completely different thing. The allegation of the RIAA is that these people are engaged in criminal activity. Hence, the police are involved. The GPL and its validity is not a criminal matter. Breach of contract is dealt with by lawyers, not the police. Only if the matter goes beyond breach of contract into criminal activity would a police organisation become involved.

Another example: The city of Chicago has lost many civil suits arising out of the mis-conduct of its employees and agents. The judgements are sometimes many millions of dollars. The city has simply not payed

This arises with many court cases and, again, has nothing to do with the validity of a licence or a court ruling, only with whether someone thinks that they can get away with ignoring it.

Until a court has ruled on the GPL, and a govt agency has actively enforced the GPL, it is not something sensible people and corporations will place great reliance upon.

Very few software licences have been ruled on by courts, and (AFAIK) none has a government agency dedicated to enforcing them. In this regard, the GPL is in no worse shape than the vast majority of software licences and yet most sensible companies and people put great store in their licences as both clients and providers. John -- John Pettigrew Headstrong Games john@headstrong-games.co.uk Fun : Strategy : Price http://www.headstrong-games.co.uk/ Board games that won't break the bank Knossos: escape the ever-changing labyrinth before the Minotaur catches you!

In a previous message, Peter B Van Campen wrote:

There have been a few court tests of s/w license terms that are called by the press "Shrink-wrap" agreements, and the courts have affirmed the use of shrink-wrap agreements. The rest of the clauses and terms in common s/w licenses are boiler-plate and as such have been tested and affirmed in court.

It is my understanding that most software licenses (specifically including Microsoft's) would actually not be valid in most countries were they to be challenged. The draconian restrictions and conditions are far beyond what would be deemed reasonable. For example, the very common stipulation that, by breaking the seal on a package, you agree to the enclosed licence - which you haven't yet seen! This is certainly not legally binding in the UK or many other jurisdictions - I couldn't say for sure about the USA because of the often strange nature of legal decisions there. In any case, I still believe that you are wrong when you stated a contract to be merely a "gentleman's agreement" once one party challenges it. It remains as legally binding as it ever was unless and until it is judged invalid by a court. John -- John Pettigrew Headstrong Games john@headstrong-games.co.uk Fun : Strategy : Price http://www.headstrong-games.co.uk/ Board games that won't break the bank Knossos: escape the ever-changing labyrinth before the Minotaur catches you!

FYI: to help give some context to the discussions. This is taken from a source focusing on employer - employee relations. However, much of it is extend to the general concept of ownership and "due diligence" in regards to the measures taking to secure IP and/or "trade secrets". If you look at the last paragraph you may find that of particular interest. ['tôrt] Anglo-French, wrongful or illegal act, from Old French, injury, from Medieval Latin tortum, from Latin, neuter of tortus twisted, from past participle of torquere to twist : a wrongful act other than a breach of contract that injures another and for which the law imposes civil liability: a violation of a duty (as to exercise due care) imposed by law as distinguished from contract for which damages or declaratory relief (as an injunction) may be obtained Definition in the Restatement (Third) of Unfair Competition The Restatement (Third) of Unfair Competition defines a trade secret as: "A trade secret is any information that can be used in the operation of a business or other enterprise that is sufficiently valuable and secret to afford an actual or potential economic advantage over others." Restatement (Third) of Unfair Competition (1995). The definition is intended to be consistent with the UTSA. Comment b, Restatement (Third) of Unfair Competition. The comments to the Restatement (Third) of Unfair Competition note: "A trade secret may consist of a formula, pattern, compilation of data, computer program, device, method, technique, process, or other form or embodiment of economically valuable information. Atrade secret may relate to technical matters such as the composition or design of a product, a method of manufacture, or the know-how necessary to perform a particular operation or service. Atrade secret may also relate to other aspects of business operations such as pricing and marketing techniques or the identity or requirements of customers." Comment d, Restatement (Third) of Unfair Competition, §39. Trade Secret Criteria The criteria adopted by the Restatement (First) of Torts for determining whether a trade secret exists are: * The extent to which the information is known outside of the business; * The extent to which it is known by employees and others involved in the business; * The extent of measures taken to guard the secrecy of the information; * The value of the information to the business and to competitors; * The amount of effort or money expended in developing the information; * The ease or difficulty with which the information could be properly acquired or duplicated by others. Restatement (First) of Torts, §757, comment b. The "Secrecy" Requirement The subject matter of a trade secret must be secret. Furr's Inc. v. United States Advertising Co., 385 S.W. 2d 456 (Tex. Civ. App.1964), cert. denied, 382 U.S. 824 (1964); Thermotics, Inc. v. Bat-Jac Tool Co., Inc., 541 S.W. 2d 255 (Tex. Civ. App. 1976). Trade secret protection, however, is not lost if the secret is discovered through "improper means." The UTSA defines "improper means" as "theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means." The Restatement (Third) of Unfair Competition simply requires that the information be "secret." The comments state: "The rule stated in this Section [39] requires only secrecy sufficient to confer an actual or potential economic advantage upon one who possesses the information. Thus, the requirement of secrecy is satisfied if it would be difficult or costly for others who could exploit the information to acquire it without resort to the wrongful conduct proscribed under § 40." Comment f, Restatement (Third) of Unfair Competition, §39 (1995). The Duty To Protect Trade Secrets The trade secret owner is under a duty to take reasonable steps to preserve the secrecy of the trade secret. E.I. duPont deNemours & Co., Inc. v Christopher, 431 F.2d 1012 (5th Cir. 1970), cert. denied, 400 U.S. 1024 (1971). If the owner of a trade secret is subsequently found to have inadequately protected the secret, protection will be denied. The property is deemed to have been forfeited. One of the principal precautions taken to protect trade secrets is the use of employee non-disclosure or confidentiality agreements. Surgidev Corp. v. Eye Technology, Inc., 828 F.2d 452 (8th Cir. 1987) (requiring employees to sign nondisclosure agreements, restricting visitor access to sales and administrative areas, keeping customer information in locked files, and distributing customer information on a "need-to-know" basis was sufficient to meet the "reasonable precaution" test). The requirement to take reasonable steps to preserve the secrecy of the trade secret varies with the circumstances of each case, and simply having each employee sign confidentiality agreements may not be adequate to preserve trade secret protection if the other precautions taken are not sufficient. See Electro-Craft Corp. v. Controlled Motion, Inc., 332 N.W. 2d 890 (Minn. 1983); see also Junkunc v. S.J. Advanced Technology and Manufacturing Corp., 498 N.E. 2d 1179 (Ill. App. Ct. 1986). Practical Considerations To Protect Trade Secrets Although the courts continually caution that the circumstances of each case will vary, several basic requirements for protecting trade secrets can be gleaned from the cases: * Reasonable precautions against industrial espionage; * Marking plans and documents "confidential;" * Use of "confidentiality" legends, warnings and agreements; * Restricting visitors and similar types of plant security; * Locking up or otherwise securing sensitive information; * Taking technical precautions, such as dividing the system into steps handled by different individuals or departments; * Copy protection and embedded codes to trace copies; and * Employee exit interviews. #In the event of litigation, it should be clear that the employer has done #everything reasonable within its power to protect its trade secrets. See #Schalk v. State, 823 S.W. 2d 633 (Tex. Cr. App. 1991) (evaluating what #constitutes requisite 'measures' to protect trade secret status), cert. #denied, 503 U.S. 1006 (1992). "Vigilance in the area of trade secrets is #required, particularly because once a trade secret is made public, all 3ownership is lost." Computer Associates Intern. v. Altai, Inc., 918 S.W. 2d 3453, 457 (Tex. 1994). #The general rule is that the employer should make sure that its confidential #information is accessible only to those with a "need to know" it. For a list #of practical considerations to protect trade secrets see Appendix 4.

-----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 scsijon wrote: | | | Actually, when you think about it, the GPL ruling would have to go a lot | higher than just the USA's Appellate Court, I would think it would have | at least go to the UN Courts even for a basic single judge 'maybe worth | hearing by a full bench' ruling, and the ruling I believe would take at | least six years on the flow lines of their present case calender. | <snip> | | But even then (with a negative UN Ruling), as Linux exists and has been | spread into countries that don't recognize the UN's legal domain it | would have also to be individually processed through the courts to | completion in each of those other legal domains as well, to get world | recognition as an action of the GPL being ruled illegal. | This is important here, as the US constitution states the sepreme court is the highest | I also believe that it would be SCO's responsability to prove the GPL is | illegal, not the Linux community to prove it is legal! | it is at least in the US courts. innocent until proven guilty Joe - -- SuSE Linux 8.1 (i386) Kernal: 2.4.19-4GB / i686 | Posted from: Miverna ~ 6:28pm up 8 days, 6:09, 4 users, load average: 0.22, 0.23, 0.19 nqs@tmcom.com | http://tigger.tmcom.com/~nqs/blogger.html -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.7 (GNU/Linux) Comment: Using GnuPG with Mozilla - http://enigmail.mozdev.org iD8DBQE+yYaKoS1S7SxfpzwRAokDAJ0axKAptydpxjnGokkwhVmUIu6YgQCgmxvc 7joUphM1oF+mqYB25UqF/ws= =QEWL -----END PGP SIGNATURE-----

On May 16, 2003 11:54 am, Peter B Van Campen wrote:

Legal scholars have questioned the enforcablity of the GPL on several grounds. The most troubling aspect of the GPL? There is no 'consideration' exchanged as part of the transaction. Read the GPL itself; there is no mention of the exchange of consideration. Consideration is at the heart of

Clearly there is consideration going one way. The right to use the code. The question is what does the person creating the code get? Now since that person is giving the code then it's obvious they think they're getting something. Nick

Dear Graham and Listees, In law 'consideration' is what is exchanged. Most often it is money. The relavent aspect of the GPL is that there is nothing exchanged in the other direction. We all know that we get the code as the licensees, but what does the Licensor get? This is the key aspect of the argument. The law believes that for a transaction to have legally occured there must have been a two-way exchange between the parties. Most courts have ruled that without exchange of money or other 'consideration' there is no legal contract. This aspect of the GPL has never been tested in a court. This leaves a doubt as to the enforceability of the GPL. If a deep pocketed corp contests the GPL in court the outcome is very much in doubt, if only because the GPL has 'shallow pockets' and may well loose by default. Sad but true. PeterB On Sunday 18 May 2003 06:43, Graham Murray wrote:

Nick Zentena writes:

...

Clearly there is consideration going one way. The right to use the code.

No, that is not the consideration which the GPL gives. The GPL gives the consideration of permission to modify and/or distribute (ie make copies and make derivative works and distribute these) the code. Both of which would be not allowed (under copyright law) without such permission.

-- -- Proud to use SuSE since 5.2 Loving using SuSE 8.2 MyBlog http://vancampen.org/blog/? --

Dear Graham, NOT A CONTRACT? Surely your are joking? Any agreement is a contract. To be enforceable the courts require the exchange of money or other 'good and valuable' consideration. However the stakes just went up astronomically: http://slashdot.org/articles/03/05/18/1613218.shtml?tid=185&tid=106 SCO may have just proved Balmer's and M$'s assertion that the GPL is "Viral Software" that can corrupt the ownership of one's own code. PeterB On Sunday 18 May 2003 12:58, Graham Murray wrote:

Peter B Van Campen writes:

...

Most courts have ruled that without exchange of money or other 'consideration' there is no legal contract.

But the GPL is *NOT* a contract.

Under copyright law, you need the permission of the copyright holder to make and distribute copies of software. Similarly you need the copyright owner's permission to create derivative works and distribute these (though you own the copyright to your changes, so both you and the original copyright owner(s) own the copyright on the derived work.)

The GPL is effectively the mechanism by which the copyright owner states "I give you permission to copy and distribute the software, and to create and distribute derivative works, subject to the following conditions...." The conditions basically being that the recipient of such copies or derivative works has to be given the same permission (to modify and distribute) subject to the same conditions as you are. If you (the user of the software) do not agree with these conditions then you do not have permission from the copyright owner (who originally placed the code under GPL) to distribute copies of the either the unchanged software or derivative works.

-- -- Proud to use SuSE since 5.2 Loving using SuSE 8.2 MyBlog http://vancampen.org/blog/? --

On May 18, 2003 12:58 pm, Peter B Van Campen wrote:

Dear Graham and Listees,

In law 'consideration' is what is exchanged. Most often it is money. The relavent aspect of the GPL is that there is nothing exchanged in the other

No there is nothing obvious exchanged in the other direction.

direction. We all know that we get the code as the licensees, but what does the Licensor get? This is the key aspect of the argument. The law believes

The only one who could argue that would be the person deciding to use the GPL. The question then becomes why choose it? I have yet to hear of any one have a gun put to thier heads forcing them to use the GPL. The fact that people are using the GPL is proof they believe they are receiving consideration. Try this. Next time a charity is having a TV drive for money. Phone up and commit to giving some money. Then try telling the court you aren't receiving anything in return so it's not a binding contract. Nick

On Sun, May 18, 2003 at 06:16:10PM -0600, Hans Forbrich wrote:

Peter B Van Campen wrote:

...

Dear Graham and Listees,

In law 'consideration' is what is exchanged. Most often it is money. The relavent aspect of the GPL is that there is nothing exchanged in the other direction. We all know that we get the code as the licensees, but what does the Licensor get? This is the key aspect of the argument. The law believes that for a transaction to have legally occured there must have been a two-way exchange between the parties. Most courts have ruled that without exchange of money or other 'consideration' there is no legal contract. This aspect of the GPL has never been tested in a court. This leaves a doubt as to the enforceability of the GPL. If a deep pocketed corp contests the GPL in court the outcome is very much in doubt, if only because the GPL has 'shallow pockets' and may well loose by default. Sad but true.

But isn't the exchange the following:

party a) permission to use and modify the code; party b) recognition that the code has been developed/released under the GPL license and the inclusion of the license in all further redistribution

IMHO, the regognition is an intellectual aspect and the inclusion is a physical aspect (or at least as physical as software can get).

To further Hans' points above, in American common law (based mainly on English common law) a contract must have an exchange of "consideration" where the consideration is usually defined as money or trade goods, but it is not limited to those things. Any "thing" tangible or not which is a benefit to the recipient can be "consideration". Exceptions to this are items specifically not legal such as prohibited drugs or the ownership of human beings. A tangible benefit to the owner of a body of GPL code would be the addition of modifications to the code which either fix bugs in the code, or improve the performance or add features to the code. Using these items as the promised future "consideration" to the code's owner and you improve the standing of the GPL as an enforceable contract. (But this still leaves the issue of defining "offer" and acceptance" in this context. Two of the other requirements for a contract to be valid. Other legal system may have other requirements) IANAL, FWIW.

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Dear Partick, I know you believe in textual frugality; but you should have included at least a sentence or two of explaination of this post. PeterB On Saturday 17 May 2003 17:53, Patrick Shanahan wrote:

* John Pettigrew [05-16-03 10:27]:

...

In a previous message, Peter B Van Campen wrote:

...

The GPL has NEVER been tested in court. This means that until a judge ( and even appellate judges) has ruled on the legality of the GPL, it is just a 'nice agreement' between agreeing parties.

Not true. The GPL is a licence agreement that is legally binding on all parties to it - unless and until it is successfully challenged in court. Your explanation suggests that any contract is invalid unless proved in court, whereas the true situation is that any contract is valid unless proved invalid in court. Which is why people take contracts to court - to get out of restrictions that they feel are unfair or illegal.

lftp ftp.caldera.com:/> !date Sat May 17 17:51:25 EST 2003 lftp ftp.caldera.com:/> ls -la pub/OpenLinux311/Workstation/RPMS/linux*.rpm -r--rw-r-- 1 ftp ftp 12873965 Dec 13 2001 pub/OpenLinux311/Workstation/RPMS/linux-kernel-binary-2.4.13-9D.i386.rpm -r--rw-r-- 1 ftp ftp 1107223 Dec 13 2001 pub/OpenLinux311/Workstation/RPMS/linux-kernel-include-2.4.13-9D.i386.rpm -r--rw-r-- 1 ftp ftp 21328558 Dec 13 2001 pub/OpenLinux311/Workstation/RPMS/linux-source-common-2.4.13-9D.i386.rpm -r--rw-r-- 1 ftp ftp 992568 Dec 13 2001 pub/OpenLinux311/Workstation/RPMS/linux-source-i386-2.4.13-9D.i386.rpm -r--rw-r-- 1 ftp ftp 964949 Dec 13 2001 pub/OpenLinux311/Workstation/RPMS/linux-source-ia64-2.4.13-9D.i386.rpm

-- Patrick Shanahan Please avoid TOFU and trim >quotes< http://wahoo.no-ip.org Registered Linux User #207535 icq#173753138 @ http://counter.li.org Linux, a continuous *learning* experience

-- -- Proud to use SuSE since 5.2 Loving using SuSE 8.2 MyBlog http://vancampen.org/blog/? --

On Friday 16 May 2003 12:29 pm, Nick Zentena wrote:

On May 15, 2003 05:29 pm, Vince Littler wrote:

...

"SCO will continue to support existing SCO Linux and Caldera OpenLinux customers and hold them harmless from any SCO intellectual property issues regarding SCO Linux and Caldera OpenLinux products."

If they indemnify their own customers in this way and then _continue_ to sell Linux, that is an anti-competitive practice, which I doubt would be

How? Every time you buy a CD the seller is agreeing to not sue you for stealing it. Doesn't mean they can't sue somebody else. You can always sell your own property.

How is it anti-competitive? Like this: If SCO sold Linux now [while indemnifying their own customers, but threatening others], they would in effect be saying "We will sue you if you buy anyone else's Linux.". That's anti-competitive [ie a dirty trick which is sufficiently obvious that they might not get away with it]. Roll forward to a point where they threaten end-users - would you not find that to be coercive against buying anyone else's Linux? All the debate later on this thread about the GPL might be valid, but as far as SCO stopping sales of Linux goes, I think that SCO not wishing to be caught as anti-competitive is at play, and it has some different implications from the GPL issue: As SCO are non-specific about what their complaint is, no other vendor [apart from IBM possibly] can evaluate their gripe or address the problem, so SCO selling Linux would be anti-competitive against anyone apart from IBM. If the complaint was specific on the IP involved and they were suing specific vendors and threatening the customers of only that vendor, that probably would not be anti-competitive. The conclusion I draw after more thought, is that the issue of whether SCO selling Linux is anti-competitive hinges on how specific they make their IP complaint in terms of what IP is involved and in terms of which vendor [and which vendors customers] they threaten. So, if SCO do not wish to be specific about the IP involved, or about the set of vendors and customers under threat, they must pay attention to the anti-competitive issue. The fact that they have dealt with it, suggests that the nature of the threat will remain vague for a good long time yet. The question is why? and what are they up to? regards Vince Littler

On Friday 16 May 2003 6:05 pm, Nick Zentena wrote:

On May 16, 2003 12:43 pm, Vince Littler wrote:

...

How is it anti-competitive? Like this:

If SCO sold Linux now [while indemnifying their own customers, but threatening others], they would in effect be saying "We will sue you if you buy anyone else's Linux.". That's anti-competitive [ie a dirty trick which is sufficiently obvious that they might not get away with it]. Roll forward to a point where they threaten end-users - would you not find that to be coercive against buying anyone else's Linux?

No. Think of it like this.

I'm willing to sell you my car. I also tell you if you buy **MY** car from anybody else you'll be risking breaking the law. I'm the only lawfull seller of my car.

That's what they are doing. Telling you that the other people selling Linux don't have the right to sell it because it belongs to them.

Nick

Well, sticking with the analogy [and we are really talking about IP which is infinitely replicable rather than your car which is not]. Your position is very different from that of SCO. If you claim that car X which Y is trying to sell is actually your car, the claim is sufficiently specific to be verifiable. What SCO [a reputable second hand car dealer] are saying is that _some_ of the spark plugs in _some_ of the cars on _some_ other dealers frontages actually belong to SCO, while sueing only one other dealer and being totally non-specific about which cars, which other dealers and which sparkplugs [and even whether its sparkplugs or another component], but saying they might sue anyone who buys a car with SCO's sparkplugs. This deters all the buyers from all of the cars in all of the dealers, except for SCO. If SCO continued to sell cars, this would be anti-competitive against all the dealers they were _not_ sueing, because they could maintain the threat for several years and then drop it without starting proceedings against any of the other dealers and without ever having made a specific claim. Come to think of it some more, if SCO carried on selling diesel cars, without spark plugs, it would still be anti-competitive, because they would have thwarted a large segment of the competition, without facing the obligation to be specific and provide evidence. And if SCO carry on selling UNIX, they are still being anticompetitive, despite having dropped Linux. Now think on that... Vince

Darrell Cormier wrote:

Fred A. Miller wrote:

...

On Wednesday May 14 2003 9:11 pm, Curtis Rey wrote:

...

On Wednesday 14 May 2003 14:58, Ben Rosenberg wrote:

[snip]

...

It's perfectly clear that SCO is desperate. They are cutting everyone of their channels. Talk about burning your bridges behind you!

They are reporting a net income of 4 million for the 2nd quarter....not a loss, so they can say that their sales are improving.....UNIX sales that is.

[snip]

Makes me wonder if the Feds should check into this one. Reckon it's another case of mis-reported earnings? :-[

'Don't think so, but maybe.

...

We'll have to see. If there's anything that is for sure in business today, it's that there are NO guarantees. :)

Fred

This one keeps my interest. I am new to Linux but I'm loving every minute of it. Hope SCO doesn't mess it up.

That would be VERY difficult for them to do. Fred -- Fred A. Miller Systems Administrator Cornell Univ. Press Services fm@cupserv.org, www.cupserv.org

On Tue, May 20, 2003 at 08:25:59AM -0700, Carl William Spitzer IV wrote: : As I remember Linux is derived from minux(sp?) which was deliberately : created to be free of the original AT&T proprietary Unix code. The only : risk I perceive is the distros allowing some migration of AT&T into their : systems. If it is a publicity stunt as you say then the solution is to : challange SCO to find it and if any exists remove that part and rewrite : it. : : The BSD people who participated in removing the last vestages of the AT&T : to create Free BSD and Open BSD. : Up to V 4.4 it still had proprietary code and 4.5 was the first which was : free of that issue.

That's pretty off. The suit centered around 4.4BSD which was the code base for BSD386. When BSD386 stopped being supported NetBSD was created off that code base and FreeBSD shortly thereafter.

The lawsuit was settled when by Novell when they bought the USL from AT&T. Part of the settlement was rewriting the handful of "offending" files (6, I believe). This rewrite is what became the 4.4BSD/Lite-2 code base. NetBSD and FreeBSD re'synced their development trees to this code base.

OpenBSD wasn't even around at this time. They were an offshoot of NetBSD a little later on.

--Jerry

Open-Source software isn't a matter of life or death... ...It's much more important than that!

I believe the only relationshitp "Minix" has ever had with Linux was the original Linux kernel ran on the Minix filesystem. Minix was a processor independant OS written in C whereas even the very first version of the Linux kernel was written specificaly for the 386 and included some assembler. Feel free to correct me if I have my facts wrong. :-)