Where to for the little people [Was: Re: [NTLUG:Discuss] found this on SCO vs Linux]

[David Brown]

Darin W. Smith wrote:

> On Thu, 24 Jul 2003 09:10:06 -0500, Tom Adelstein 
> <adelste at netscape.net> wrote:
>
>> This is not a matter of whether SCOis innocent until proven 
>> otherwise. They have the burden of proof. I don't believe they have 
>> the goods. Therefore, I challenge them.
>>
>> I don't understand how discussing the future of Linux is off topic. 
>> Can someone enlighten me?
>
>
> I think discussing the future of Linux is entirely ON topic.
>
> You are absolutely correct, IMO, that the burden of proof lies on 
> SCO.  What I think would be the most productive thing to do, legally, 
> is to force them to reveal, clearly and openly, what code they 
> contest.  As it is, one can only see particular examples they have 
> chosen and only if you have agreed to a rather offensive NDA.
>
> They may be only suing IBM (right now), but they should allow 
> "discovery" by all involved parties--i.e., anyone who has anything to 
> do with Linux kernel development.  As it is, they are (IMO) attempting 
> to hold the entire Linux (and open-source in general) market for 
> ransom.  I believe the word for that is "extortion."
>
> \Ex*tor"tion\, n. [F. extorsion.] 1. The act of extorting; the act or 
> practice of wresting anything from a person by force, by threats, or 
> by any undue exercise of power; undue exaction; overcharge.
>       ^^^^^^^^^^  ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
>
> 2. (Law) The offense committed by an officer who corruptly claims and 
> takes, as his fee, money, or other thing of value, that is not due, or 
> more than is due, or before it is due. --Abbott.
>       ^^^^^^^^^^^^^^^                       ^^^^^^^^^^^^^^^^^^^
>
> 3. That which is extorted or exacted by force.


The difference between criminal law and civil law is that there isn't no 
"innocent until proven guilty" in civil law.  I am unclear on how this 
case would be proceeded upon as (I believe) IP infringements are 
consider under criminal law which would mean that would have to be 
proven beyond a reasonable doubt.  Which I don't think SCO can do 
considering thier claim is based on "derivative work" definded by U.S. 
Copyright Act (17 U.S.C. 101, et. seq.).

As defined by U.S. Copyright Act (17 U.S.C. 101, et. seq.)

A ?derivative work? is a work based upon one or more preexisting works, 
such as a translation, musical arrangement, dramatization, 
fictionalization, motion picture version, sound recording, art 
reproduction, abridgment, condensation, or any other form in which a 
work may be recast, transformed, or adapted. A work consisting of 
editorial revisions, annotations, elaborations, or other modifications, 
which, as a whole, represent an original work of authorship, is a 
?derivative work?.

SCO themselves claim IBM distributed "derivative work" that IBM 
themselves did based from SCO's System V source to the extent of even 
including actual source from System V into Linux.  Althought as definded 
by the Copyright Act noted, it MUST represent System V as a "WHOLE".   
SMP, RCU, and JFS don't represent System V as a whole.  At best they 
could be considered  additions included into System V code.  It would be 
like considering the seat belt derivative work of the a wheel.

This brings up (what I consider) the whole reason why SCO forced anyone 
that wanted to examine the offending code to sign an NDA even thought an 
NDA wouldn't "protect" SCO's IP at all because the offending code they 
are talking about is already on 10 million+ CDs floating around the 
world.   Their "proof" is paper thin and unsubstantiated.  IMO, this 
whole debacle was a ploy to get IBM to buyout SCO for at least twice 
SCO's current value. (which is far less than a billion dollars)  As for 
SCO's attempt to licenses Unixware to Linux users I side with Darin.  
Scare tactics are illegal and should fall under extortion law.  
Especially considering they wouldn't substantiate their claims.   They 
are probably doing this to help pay their lawyers for the nasty battle 
they are about to embark on.

I wouldn't worry to much about it.  What IBM does will determine the 
outcome of this, and IBM is a big boy and can handle themselves.  In the 
end this probably will have little effect on Linux users in the 
corporate or home user enviroment.  One of the executive where I work is 
a large holder of SCO stock, and he noted that he isn't interested in 
licensing Unixware to "protect" the company.   He doesn't believe their 
case holds water; he is just in it for the buck since their stock keeps 
going up.

sorry about the rambling.  :(

David