Lanham Act Claims Extend to False Statements by Implication and Innuendo w/ Comments re: SCO v. IBM Case
In PhotoMedex v. Irwin, the Ninth Circuit Court of Appeals ruled that false advertising claims under the Lanham Act extend to false representations made by implication or innuendo; and are not limited to literal falsehoods.
PhotoMedex, Inc. is a medical device manufacturer. It competes against RA Medical Systems, Inc.
PhotoMedex had finished a new laser device for dermatological treatment. Its competitor, RA Medical Systems, was also working on a completing product, but was late to market. RA Medical Systems told its clients that its new laser device would be ready “in a few months.” In fact, the laser device was not available for about 18 months.
PhotoMedex brought Lanham Act claims against RA Systems for making “false and deceptive statements in a commercial advertisement” about the market readiness of its laser product. RA Systems defended by claiming that its statements about the future readiness of the laser device was a matter of opinion, not reachable by Lanham Act claims.
The Southern District of California, Judge Janis Sammartino, agreed and issued summary judgment in favor of defendant. The Ninth Circuit Court reversed, explaining that a statement of opinion may be actionable “if the speaker knew at the time the statement was made that it was false or did not have a good faith belief in the truth of what was said.”
On a related issue, the Ninth Circuit Court also held that the commercial depiction of a well-known device inventor, Mr. Irwin, as inventor of RA Systems’ laser was also actionable if misrepresented Mr. Irwin’s actual contribution to the invention.
PhotoMedex argued that Defendants knowingly misrepresented in March 2003 that the “Pharos” laser would be available that summer, within just a few months. Defendants admit they did not ship the first Pharos until September 2004, more than a year later, but argue that they were delayed in part by having to defend against PhotoMedex’s multiple lawsuits.
The district court interpreted the predictions of the Pharos’s release date to be mere statements of opinion regarding future events, which are generally not actionable. There is, however, a well-established exception — if “the speaker has knowledge of facts not warranting the opinion.”
An honest or sincere statement of belief about a future event is not actionable, but a statement known at that time by the speaker to be false, or a statement by a speaker who lacks a good faith belief in the truth of the statement, may constitute an actionable misrepresentation.
PhotoMedex provided expert testimony that moving a medical laser from the beginning of design to production would typically require 12 to 18 months. The Ninth Circuit panel concluded that the expert evidence raised a genuine issue of material fact as to whether defendants intentionally misrepresented the Pharos’s release date.
The potential motivation for and harm from such a misrepresentation was obvious: by telling prospective purchasers that the Pharos would be available soon, defendants might have persuaded them not to buy PhotoMedex’s device, which was already available, leaving them open to consider and possibly purchase defendants’ competing product later.
Defendants’ commercial depiction of Irwin as “inventor” of the system is actionable to the extent it misled consumers into believing that Irwin was the sole inventor or made more than his actual share of inventive contributions.
In an expansive reading of the Lanham Act, the Ninth Circuit Court explained: “a false advertising cause of action under the [Lanham] Act is not limited to literal falsehoods; it extends to false representations made by implication or innuendo.”
Prevailing lead counsel in the case was Thomas D. Warren, Baker & Hostetler, Cleveland.
The Ninth Circuit panel included: William A. Fletcher, Richard R. Clifton and Milan D. Smith, Jr., Circuit Judges.
These criteria certainly also apply for those who falsely claim copyright violations.
One good example is The SCO Group, Inc., which since 2003 (to this very day) states that Linux users violate SCO copyrights and therefore have to pay protection money to SCO (http://sco.com/scosource/ipprotectionfaq.html).
All those years SCO (and expecially the former CEO Darl McBride) was aware that Linux does not violate any SCO copyrights (http://www.groklaw.net/pdf/IBM-459-22.pdf).
Andreas,
Actually, the Lanham Act provisions have nothing to do with copyrights–an entirely different legal standard applies.
You claim in your post that Linux does not violate any SCO copyrights. While UNIX ownership rights are still not finally settled (pending SCO’s appeal of Novell’s jury victory in March, 2010) it is certainly my view, after careful review of all these issues, that Linux DOES violate UNIX copyrights, particularly in ELF code and related tools (debugger code, etc.), header file code wherein implementation code (not just the header interface) have been copied verbatim; STREAMS code; etc. that the Linux community use without license. Then there is the entire question of the overall structure and sequence of Linux being almost an exact copy of UNIX.
There should be little question by anyone at this point that Linux uses a LOT of UNIX code. The Linux world thinks that use is permissive. SCO disagreed. That is the only real issue to be discussed here.
Will Novell donate the UNIX copyrights to the Linux community if it wins the current appeal? Probably–although Novell’s Linux activities have been difficult to predict in recent years. But does Linux violate UNIX copyrights? Yes.
So, in my opinion, Linux users owe Novell–and particularly its excellent Morrison & Forrester legal team–a huge debt for coming to the rescue and keeping Linux a royalty-free product.
“But does Linux violate UNIX copyrights? Yes.”
As you and the despicable SCOX have repeatedly failed to produce any evidence of that over 7 years, I’d say *you* just committed a Lanham violation.
Paul, please see my response to Jacques, below. As mentioned, there was a lot more evidence produced of IBM copyright violations that cannot be disclosed publicly because of the protective order.
A question if I may…
You state: “… it is certainly my view, after careful review of all these issues, that Linux DOES violate UNIX copyrights, particularly in ELF code and related tools (debugger code, etc.), header file code wherein implementation code (not just the header interface) have been copied verbatim; STREAMS code; etc. that the Linux community use without license. Then there is the entire question of the overall structure and sequence of Linux being almost an exact copy of UNIX.”
Discovery being now over and no new evidence can be given in the SCO-IBM trial, why wasn’t any evidence of this given in this trial?
Jacques,
You asked:
“Discovery being now over and no new evidence can be given in the SCO-IBM trial, why wasn’t any evidence of this given in this trial?”
SCO submitted a very material amount of literal copying from UNIX to Linux in the SCO v. IBM case. For example, see the following excerpts from SCO’s evidence submission in Dec. 2005 in the SCO v. IBM case:
Tab 422; Tab 421; Tab 420; Tab 419; Tab 418; Tab 417; Tab 416; Tab 415; Tab 414; Tab 413; Tab 412; Tab 411; Tab 410; Tab 409; Tab 333; Tab 332; Tab 331; Tab 330; Tab 329; Tab 255; Tab 254; Tab 253; Tab 252; Tab 251; Tab 250; Tab 249; Tab 248; Tab 247; Tab 246; Tab 245; Tab 244; Tab 243; Tab 242; Tab 241; Tab 240; Tab 239; Tab 238; Tab 237; Tab 236; Tab 235; Tab 234; Tab 233; Tab 232; Tab 231; Tab 230; Tab 229.
There was MUCH more submitted in the SCO v. IBM case that I cannot disclose publicly because it is comparison of code produced by IBM under court protective order that prohibits disclosure.
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.
As I mentioned in the reply to Andreas, if you Linux guys want to give credit where credit is due, you should all thank Novell for having the courage to take the case all the way to trial (I thought SCO had a much stronger case the on ownership question) and its legal counsel, Morrison & Forrester, for doing an outstanding job for Novell at trial–Michael Jacobs, Eric Acker and Sterling Brennan.
You mean the same STREAMS code that was never part of Linux except for Caldera’s distribution?
Your repetition of this laughable assertion (that Linux violates Unix copyrights because of STREAMS) shows that no-one should take the rest of your assertions and beliefs seriously.
Notgiven,
Your assertion that STREAMS was only part of a Caldera distribution is simply not true.
Bald assertions are worthless.
Name a distribution other than Caldera’s that included STREAMS.
Notgiven,
I believe the Linux version referenced in our code proof was created and distributed by GCOM, Inc. It is my understanding (although it has been a while and my memory may be hazy) that GCOM is/was the principle distributor of STREAMS in its UNIX variant and its Linux variant. I also think I remember (again, memory is hazy) that GCOM is/was the code maintainer for the Linux version of STREAMS.
I’m not aware that Caldera actually distributed a version of Linux STREAMS, although I know that Caldera distributed the SVR4 Unix version. Although I am no longer involved in the case, for my personal curiosity, can you point me to a Linux version of STREAMS distributed by Caldera?
Thanks for the pointer to GCOM.
Question: since you believe GCOM distributed STREAMS code, why did SCOX not sue GCOM?
Someone already posted a link that shows Caldera was distributing STREAMS code.
Here are two articles published on Groklaw which should help you to get or find that information.
Answering SCO Bit by Bit – Streams and more GPL’d header files in Caldera OpenLinux 2.2
Tuesday, December 22 2009
http://www.groklaw.net/article.php?story=20091222033812535
STREAMS, LiS, and Caldera’s Netware for Linux
Monday, July 03 2006
http://www.groklaw.net/article.php?story=2006070309564374
Thanks Andreas–I will go look at this.
For anyone who would like to know more about the alleged infringing code in Linux that Kevin is referring to, a good place to start is here:
ftp://ftp.sco.com/pub/openserver5/opensrc/source/gnutools-5.0.7Kj-SRC.tar.bz2
Herein you will find “ELF code and related tools (debugger code, etc.), header file code wherein implementation code (not just the header interface) have been copied verbatim;”
along with Free Software Foundation copyright notices, GPL license notices, and ELF contributions from programmers at Santa Cruz.
Another place to check is here:
ftp://ftp.nvg.ntnu.no/pub/mirrors/metalab.unc.edu/distributions/caldera/
OpenLinux/updates/2.3/current/SRPMS/linux-2.2.10-10.src.rpm
wherein you will find “STREAMS code; ” including allegedly infringing code contributed by Caldera, along with the usual GPL license notice, etc. etc. etc.
All being distributed “to this very day”.
sk43999,
You can see part of SCO’s evidence submission in the reply to Jacques above. As mentioned, I have always acknowledged legitimate arguments by the Linux community that the use of this code was permissive. However, the fact remains that no software license was ever signed, and the GPL para. 0 was not complied with. Therefore there are also legitimate that use of UNIX code in enterprise Linux was never permitted. Unfortunately, this question will probably never be put to a jury.
Kevin,
MANY MANY THANKS for the information you posted in your reply to Jacques!!! If there are more instances of copied code included in the December 2005 evidence submission that you are permitted to post, they would be most welcome!
sk43999,
I am not sure if your “THANKS” is genuine or sarcastic, given the troubled history between SCO and the Linux community. Nevertheless, either way, you are welcome. I will try to find the time to review the 2005 submission and explain the SCO case as clearly as possible in response to your invitation. Please understand, however, I have current cases to handle and this posting project alone could consume more time than I can afford to give. I will try to post more information in the coming days. Please be patient if it takes a while. However, insofar as I am allowed, I will do my best to give a straightforward accounting of SCO’s evidence and claims so they can be understood better.
Cheers.
1) ELF is an industry standard
2) STREAMS never made it to the Kernel
3) SCO gave the world a licence to it’s code through it’s own Linux distributions and work in UnitedLinux
So even if Novell had lost this claim it wouldn’t make a blind bit of difference to me or any other Linux user, SCO has no case and has never had a case.
Al,
(1) SCO has convincing evidence that IBM made ELF an ostensible “industry standard” without SCO’s approval during Project Monterey. IBM needed the rights to ELF standard in order to make its Linux strategy work. IBM claimed ELF was going to be used for the joint Project Monterey code base, but then gave the standard to other third parties to re-write for Linux. This “industry standard” was never meant for the enterprise Linux market.
(2) All code is copyrighted, not just kernel code. STREAMS is a code set valuable to telecom carriers who could not switch to Linux without a working version of STREAMS.
(3) As I said in the reply to Andreas, there are legitimate arguments that SCO / Caldera may have allowed permissive use to its code base in Linux. The arguments against that are too detailed to outline here. Suffice it to say that there are two sides to this story–and SCO has legitimate arguments that it never gave permissive use to its code.
SCO actually had a great case against IBM and, in my opinion, you guys are all lucky Novell won the ownership issue at trial. You are entitled to your contrary opinion, of course. But I have a thorough understanding of all these issues and I think Linux was seriously at risk for needing to pay royalties.
I have a thorough understanding of these issues as well and I can assure SCO doesn’t have a case, you can’t knowingly distribute code under the GPL then turn round and sue people for using it. No amount of secret arguments can change that.
Kevin,
Your comments have been most illustrating.
I am still puzzled about how contract violations by IBM could result in liabilities by other Linux users? Even if one accepts that IBM violated its Unix contract by distributing JFS, NUMA and other code, surely you don’t claim that this code is owned by SCOX, do you? Especially given the $echo article that disclaimed any restrictions of such code by AT&T.
You discuss IBM making ELF a standard without permission during Project Monterrey, but those claims are dead. SCOX sued too late and in the wrong venue for any violations of the Project Monterrey.
Surely SCOX should have sued Linux distributors such as Red Hat and SUSE?
Notgiven,
In my view, contract violations by IBM would not result in liabilities by other Linux users.
Re: SCO’s Project Monterey claims, these are still in the IBM case. What Judge Kimball disallowed was a third amended complaint which would have asserted copyright violations by IBM resulting from Monterey. The third amended complaint was ruled “not timely”–thus not a ruling on the merits.
Thanks, Mr. McBride, for these historically important disclosures about the SCO litigation.
Your documents refer both to the Linux kernel and to the GNU libraries (gnulibc.) As you know, the magistrate judge in SCO v. IBM entered an order [718] striking most of SCO’s disclosures of allegedly misused material for lack of specificity. IBM had previously moved successfully to restrict the scope of its Tenth Counterclaim to the kernel itself (excluding the GNU libraries.)
Do your disclosures above represent all the material relating to the kernel that survived Wells’ order? Thanks in advance for your reply.
El Corton,
I agree with you that these documents are historically important and should be disclosed as far as possible. Since I am no longer counsel for SCO, I can start to do that to some degree.
You are correct, of course, that my documents refer both to the Linux kernel and the GNU libraries and related tool chains / debuggers, etc. The items I posted in reply to Jacques are all items that survived Judge Wells’ order to strike.
I am not aware that IBM successfully moved to restrict the scope of its Tenth Counterclaim to the kernel itself–I am aware IBM TRIED to do that, and even in its summary judgment arguments, IBM argued for such a restriction. I am not aware, however, that it has yet been successful in that effort. If you have a pleading that supports your statement, please post, if you wish.
I am not technically proficient enough to explain precisely which part of SCO’s disclosures are kernel-related and which part are user code, although generally, I do know that the vast majority of SCO’s copyright evidence relates to user code and NOT the Linux kernel. I should add, however, that SCO has submitted an expert report to the effect that the Linux kernel copied the essential structure and sequence of the UNIX kernel, which would be a copyright violation. I am not very conversant with that report and I don’t believe I have authority to publish it, but I will check–and if I can publish parts of it here, I will do that.
The SCO v. IBM case, however, is NOT primarily a copyright case. As you seem to understand, the SCO copyright evidence related to Linux was produced in response to IBM’s Tenth Counterclaim. SCO’s DIRECT case against IBM was that IBM’s former Dynix programmers (Paul McKenney, et al.) improperly used UNIX methods and concepts in making Linux enterprise hardened, and that IBM stole code from Santa Cruz in Project Monterey for use in AIX modules to bring AIX up to speed in UNIX and Linux in order to better compete against Santa Cruz on Intel-based UNIX and SUN Microsystems on RISC-based UNIX. (The quality of AIX badly lagged its competitors circa 1999, during Project Monterey).
Unless I am mistaken, the claims with regard to Monterrey were struck out, given they were not in the original statements of claim.
Doesn’t that leave only “methods and concepts” which are not protected by copyright, and as SCO has no relevant patents, basically unwinnable by SCO?
Thanks for your response. You’re right, of course, that IBM didn’t actually move to limit the scope of its tenth counterclaim to the kernel, though it did assert in its pleadings that the claim was so limited. I mistakenly thought that all the Final Disclosures that survived the order to strike concerned the kernel, but you’ve enlightened me on that point. My main concern is to know whether the documents linked above represent all the surviving disclosures, and if I understand you correctly, the answer is yes.
I doubt that I’m any more technically proficient than you are, but all the files referenced on the right side of these documents that have ‘glibc’ in the path are GNU library files, not part of the Linux kernel and thus not relevant to counterclaim 10, according to IBM’s theory.
El Corton,
No these are not all the surviving disclosures.
Nice try on tab-247.pdf – syslog.h. Its from BSD:
http://www.opensource.apple.com/source/xnu/xnu-1456.1.26/osfmk/sys/syslog.h
/*
* Copyright (c) 1982, 1986, 1988 Regents of the University of California.
* All rights reserved.
*
* Redistribution and use in source and binary forms are permitted
* provided that the above copyright notice and this paragraph are
* duplicated in all such forms and that any documentation,
* advertising materials, and other materials related to such
* distribution and use acknowledge that the software was developed
* by the University of California, Berkeley. The name of the
* University may not be used to endorse or promote products derived
* from this software without specific prior written permission.
* THIS SOFTWARE IS PROVIDED “AS IS” AND WITHOUT ANY EXPRESS OR
* IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED
* WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE.
*
* @(#)syslog.h 7.10 (Berkeley) 6/27/88
*/
One thing you guys forgot was way back when there was a lot of co-mingling of code between BSD and Sys-V. That’s what the lawsuits in the early 90′s were all about.
Ecaf–
I’m pretty well aware of of the BSD / SysV lawsuits and related issues. If Item 247 (listed in the reply to Jacques) is a BSD item, that is something I am not aware of, so I can’t really comment further at this point without doing updated research and speaking with technology experts.
That’s the point – we *HAVE* done the research and we *ARE* experts and we know SCO has no case, whoever owns the copyrights.
Al,
I don’t doubt that you are experts in sofware development, but that is not the same thing as being an expert in IP law. I realize you think SCO has no case. Many Linux developers share your view. I disagree.
This is what we were saying from the beginning that a lot of what was claimed as “Unix code” is in fact from BSD, which is free for all to use.
Id really love to see the copyright headers from that file (above line 33 which is removed) and see if the original copyright information was removed.
I suspect it has.
Ecaf, if Tab 247 actually derives from BSD, then I can certainly see a problem with that item of evidence. However, you do yourself a dis-service to pick out one (possibly) weak element of evidence and then dismiss SCO’s entire case based on that one item.
Sir,
I’m just an observer here, but your posting and the pdf documents you have attached comes as a very significant surprise. As you were counsel to one of the parties in both the SCO vs IBM case and the SCO vs Novell case, you would have had access to a lot of privileged documents.
Are you *sure* that the you have the Court’s permission to release the files you have posted? Have they been uploaded to Pacer?
Is it possible that you have made an error and published documents that were filed with the Court under seal?
May I respectfully suggest that you check as a matter of urgency and, should the need arise, notify the Court – and of course Counsel for IBM and/or Novell, as appropriate – of the documents that are here.
Noone Of Consequence,
Far too much of the SCO v. IBM case has been filed under seal–truly a ridiculous amount of evidence. I don’t need the court’s permission to publish evidence based on public information, nor do I need permission from IBM or Novell. The code posted in reply to Jacques, above, is all publicly available.
In many ways it is a pity, although I’m sure it’s the right decision, that Novell has been ruled, a ruling unlikely to be overturned on appeal, to own the copyrights to Unix and their waiver of the case against IBM ruled to have legal force.
I’d really like to have seen the sheer inanity of so many of these claims of copying from UNIX to Linux exposed in the IBM case. But that will end up being short-circuited and the bogus “questions” will remain.
95% of these “examples” are “#define” and “struct” definitions to provide the standard interface to meet the specification, ELF in particular. Differences in layout etc prove the different authorship. The only examples of code are trivial “only possible way of doing it” cases.
That’s when it’s not relevant at all, such as the origin of the code being with BSD.
If these are the “examples” that survived Judge Wells, the ones that didn’t must have been truly hilarious.
How Kevin can be unashamed of his prior association with such an attempt to extract money from IBM and others by sheer fraud – still continuing and now in its 8th year – escapes me.
John,
I have given all you guys open rein to post on my blog site because I think it is historically important to have some sort of dialog on this case that has been important to development of the IT industry. But I am getting overwhelmed with responses, like yours above, which looks to me like a standard Groklaw argument that does not consider all the underlying facts in a thoughtful way. Take, for example, the interface code. The interface code was created and published by USL to intice application developers to write new apps to the UNIX platform. Linux users then came along and essentially used the interfaces to reverse-engineer a product that competes with UNIX. In some cases, actual implementation code was copied. IBM then came along and tried to strong-arm the published UNIX interfaces into an acceptable format to be used by enterprise-grade Linux. It was SCO’s position that this type of use was never authorized by USL or any of its predecessors. The UNIX interfaces were published in order to expand the world of applications available to UNIX–in order to sell more UNIX licenses–NOT to allow UNIX to be reverse engineered and replaced in the commercial marketplace by Linux. These are the types of issues that would have been argued in the SCO v. IBM case.
Guys,
This blog article is on the Lanham Act. Andreas posted the first comment about SCO, to which I responded, almost as a lark.
The resulting comments then took off in an entirely unexpected direction. I decided to post all your comments / criticisms of me and SCO because I believe it is a healthy process to have this dialog. Far too much of the SCO v. IBM case has taken place in secret. It would have been a far better process (in my view) if more of it had been open. I am no longer counsel for SCO, so I am able to make a few comments like this. But I would point out that IBM is the party who has insisted on secrecy of the litigation process along the way, far more than SCO.
I have done my best to respond to most of your comments, where I thought I could. But I need to get back to my day job, and close comments on this blog string. I am not trying to shut down your right to comment on my site, I just can’t spend all day responding the way I would like. Perhaps in the future we will be able to have a more structured format on this site, or somewhere else, to allow an open debate about SCO and SCO’s claims. I believe such a dialog is important to the overall development of intellectual property in the software industry.
What have we all learned from this long and difficult process? I certainly made my share of mistakes along the way, and have tried to learn from them. How about you guys? Are you able to see SCO’s point of view in all this, even if you don’t agree with it?
I submit that intellectual property protection is important for you to make money in this industry. Without proper IP support, your labor will become (or already is) commoditized, resulting in precious little IP protection for small companies and individual developers. In a world without IP protection, the power of IBM and Microsoft dominate the industry and everyone in it.
You all accepted Groklaw’s ongoing drum beat against SCO and Darl McBride, almost as a religion. Did anyone ever critically ask about Groklaw’s agenda, funding sources or allegiances?
Perhaps you all agree with Prof. Lessig that software should be free. I don’t agree with that position–that is great for a chaired Stanford professor to preach, but for the software developer who needs to feed his or her family, free software equates to commoditized labor and low wages.
Thanks for all your interesting comments and, for the most part, very constructive questions and criticisms. Since this is my blog site, I get the last word, or, more precisely, the last random string of thoughts:
1. I greatly respect Prof. Stallman and his efforts to create a clean GNU tool chain. Prof. Stallman seems to be an IP purist, who may not believe in copyrights, but would never think of bending the rules. (I’m not sure this is the case, but it is my perception of him.)
2. IBM changed the game in Linux, by taking many shortcuts to shorten time to market with a Linux product that would save its faltering business in 2000. In this process, IBM violated IP rights of SCO: (1) in the Dynix software contract (ingnored its obligation to protect “methods and concepts”) (2) in Project Monterey (stole code from SCO and misrepresented the purpose of the joint project) and (3) in misrepresenting the nature and true purpose of “standards” bodies that were, in truth, designed to advance an IBM agenda in the Linux world.
3. You guys have had some legitimate arguments against SCO, and a lot of these things could have been cleared up if the IBM lawsuit had been more transparent.
4. Whether you like it or not, the SCO cases have imposed a level of IP discipline on the open source software world that did not exist before SCO.
5. Software should not be “free.” In this new day and age of corporate control of the world, IP rights are an important barrier of protection that help the little guy. Big companies mostly don’t need IP rights, because they can get their way through force and market power. Small companies and individual developers need strong IP rights so the fruits of their labor are not commoditized by big companies.
Again, best wishes for your individual successes, and for success of Linux.
If it is possible to post more information about the SCO case, I will open another blog string and submit more information and invite discussion–debate. But I need permission to do that, first.
Best regards,
KM
In the spirit of more openness on this topic, I have decided to give a Linux advocate the last word–Sean R sent the email below last night after the blog comments closed. While there is much of this comment I disagree with, I think it is better to have his opposing view published, since it is a rather comprehensive rebuttal to my closing comment. So here it is:
Mr McBride, I\’m sending this note since you closed comments on your blog. I find too many incorrect assertions in your comments which I thought you may be not aware of. It is not true that: \”We\” (the free software community) are against copyrights. In fact all the important free and open source licenses I\’m aware of, such as the GPL and the FreeBSD license are based on copyright law and obviously they respect it (the law). You say: \”Software should not be “free.â€\” as if we are arguing with you. It is not true that we \”want software to be free\”. We have no interest in proprietary software because we find it generally inferior and less useful. We elected OUR OWN software to be free and this is a crucial difference. It is our full right (based on copyright law) to license our own software under the terms we find superior for its development and future improvement. Again, our chosen license, in the case of Linux, The GPL, is based on U.S. copyright law. Your theory on Novell saving Linux is equally weak. Novell has gained from Linux much more than it ever contributed to it. So did Red Hat or any successful company that elected (unlike Caldera/SCO) to be part of the community as opposed to going against it. A quick look at the market-cap of Red Hat vs Caldera/SCOX.pq should make this obvious. Both companies were very similar in their business plans when they started. Similarly, IBM has got from Linux much much more than it ever contributed. Looking at the relative number of lines contributed by any one company should make this obvious. PJ: you keep claiming that she\’s some agent of unspecified big corporations. Claiming things, and SCO has claimed many, doesn\’t make them true. When you claim something, please try to bring in some verifiable references to be credible, You keep claiming that \”There should be little question by anyone at this point that Linux uses a LOT of UNIX code\” and you\’re once again confusing standards and interfaces (header files) with implementation code. Sorry, your basic premise is wrong. Linux has no AT&T SVR4 Unix code in it. The only two examples of _actual implementation code_ I\’ve ever seen actually shown by SCO (atealloc, and BPF) were already proven to be either not in Linux (SGI) and/or used under a totally valid license (BSD) that isn\’t from SCO. All the code examples you put on your site are already being shown as nothing that is protectable under copyright law. Either they can\’t pass the abstraction/comparison/filtration test (e.g. headers which follow an official industry standard, like ELF and dynamic loading), or they don\’t really originate from SCO or its predecessors (e.g. BSD code released after the USL/UCB settlement). In any case, they have not been contributed by IBM so you have no case to begin with there. The whole theory of \”Linux would have not achieved \”enterprise level\” without IBM\” is a vacuous assertion that has no basis or support in reality. Linux had SMP support (written by Alan Cox) before IBM entered the scene. Linux has several journal based file-systems besides JFS to give just two examples. In the end, the truth is that SCO folk with your help, has asserted rights on something that never belonged to them hoping to enrich themselves from the work of others. Also, it is now becoming obvious that the IBM case is even more tenuous considering all the IBM strong and solid counterclaims, than the Novell poor case. SCO put in 7 years of litigation, and almost a billion dollars of accumulated deficit (since the Caldera IPO), all the productive employees have lost their jobs. All shareholders and creditors have lost everything. The only winners (money, not reputation, unfortunately) were the lawyers and the high officers of the company which they drove to the ground. It may be hard to accept this truth. But no amount of denial can change the truth. Sorry if this hurts. It is time to move on and try to bring some good to the world.
Kevin,
Thankyou for hosting this conversation. It was a brave and important action. I felt I should offer my support personally and do not expect it will not be visible on the blog.
Whichever side of the legal arguments obersvers are on I am sure all thoughtful and sensible readers appreciate you presenting this in the fair way that you have. Certainly there are disagreements about what the source evidence means and how laws should be interpreted but presenting both views led to a lively discussion.
If the Dynix developers brought Unix technology into Linux maybe it was in their experience in knowing what does and what does not work that provided an assistance to their new project (using implicit knowledge rather than actual code snippets).
Thanks Tim. I decided to host this conversation because I was pleasantly surprised with the several Linux advocates posting on my site who were willing to engage in civil dialog–something that has been missing in the SCO debate thus far. I am encouraged that we can make this start, and hopefully can do a more detailed debate sometime in the near future, if I can get permission to do that.