<nettime> Impaired - is it SCO? preliminary thoughts.

[Martin Hardie <auskadi@tvcabo.co.mz>]

I make no claims as a hacker, I am a mere Linux user, in the jargon, a newbie 
at that, but I have been trying to come to grips with the various aspects of 
the SCO litigation in order to assess their relevance to my ongoing research 
(re other ways to imagine law and OS). That research is by  nature part 
legal, part philosophical and part political.

I am sending this rough work out so maybe we can discuss it and those who have 
something to add can help me  and in fact us all out in better understanding 
what is happening. In case anyone wants to accuse me of something .. I am not 
doing this to defend SCO's position but to try and get to the bottom of it. I 
am not seeking to defend SCO (or IBM for that matter). I have just trying to 
sort the wheat from the chafe. Any help is appreciated. And please it is a 
working thing - not finished thoughts or conclusions.

Anyway to commence the process of disassembling SCO and the courts I have been 
going through a number of documents including the complaints and counter 
complaints filed in the SCO v IBM case and the Red Hat v SCO case, the OSI 
Position Paper  on the SCO v IBM Complaint and the document "Halloween IX: It 
Ain't Necessarily SCO", http://www.opensource.org/halloween/halloween9.html, 
amongst other things. At its core it seems to me at this point that the 
litigation is based upon the rights that SCO has acquired in a form of UNIX 
based upon the broad genealogy  of AT&T - USL -Novell - Caldera - SCO. And it 
is of course this purchase and the variously related contracts that give rise 
to the simplification that this is not a copyright dispute. But the more I 
read the import of the dispute revolves around breaches of contract which in 
themselves refer back to the copyright purchased by SCO. It may be to 
characterise this dispute as not being about copyright is to fall straight 
into the lair of SCO's not inexperienced lawyers. 

In Lessig's second tome, The Future of Ideas at page 53 the Prof. says: "After 
1984, UNIX would no longer be free....". This it seems is a reference to the 
fact that on "January 1, 1984, the Bell System was broken up. ... AT&T could 
enter the software business. ... (and) ... That year, the corporation began 
to develop Unix as a commercial product". The corporate acquisitions history 
is such that whatever the rights held by AT&T as of 1984 were in 1994 
purchased from Novell by Caldera and ended up being owned by SCO. 
This all seems clear from the Corporate History outlined in the OSI Position 
Paper (See: http://www.opensource.org/sco-vs-ibm.html#id2788824).

We thus have a position were SCO bought something which was a UNIX and was 
from 1984 unfree. It was proprietary software that was passed down from buyer 
to buyer from AT&T to USL to Novell to Caldera to SCO. But having worked this 
part out things start to get messy but it seems to me at this point that what 
they bought seems to have been UNIX System V (r1). Depending on what has been 
done since that time System V (r1) seems to have now grown into Open Unixware 
8 and SCO Unix 7 (again see: 
http://www.opensource.org/sco-vs-ibm.html#id2788824).

No in both the OSI Position Paper and in Halloween IX: It Ain't Necessarily 
SCO, the OSI gang tell us that whatever SCO bought it has been "impaired". 
Thus the next point to try and unravel this appears to involve looking at 
these impairments. In doing so given that e are dealing with law, 
(Intellectual) property and contracts (the things that the GPL is based upon) 
we need to examine these impairments using the same tools.

The first impairment is said to be the "legal action in 1992-1993, in which 
Unix Systems Laboratories and Novell (SCO/Caldera's predecessors in interest) 
sued various parties including the University of California at Berkeley and 
Berkeley Systems Design, Inc. for alleged copyright infringement, trade secret 
disclosures, and trademark violations with regard to the release of 
substantial portions of the 4.4BSD operating system" (OSI Position Paper). 
The legal action which was in fact two separate lawsuits: the first only 
involved a denial of a interim injunction sought by USL against Berkeley 
until a trial could be held 
(http://cm.bell-labs.com/cm/cs/who/dmr/bsdi/930303.ruling.txt); the second 
was commenced after the ruling denying the interim injunction was made by 
Berkeley against USL. 

Now the Position Paper states that the request for the injunction  "was denied 
in terms that made it clear the judge thought BSD likely to win its defence". 
I have only read this ruling once and in then a cursory fashion. I have to 
respectfully disagree with t he conclusion reached by the OSI at this time. 
And even if the judge did think this it does not decide anything f substance 
in relation to the copyright claimed by either USL or Berkeley at that point. 
It merely decided that any injunction would need to await the outcome of the 
trial. Interim injunctions are often argued and often lost with the final 
trial many times ending up in favour of those who sought but did not gain the 
interim injunction. But more to the point it is only a precedent for cases 
concerning the granting of interim injunctions - nothing more and nothing 
less. To claim that this ruling "impairs" some rights that SCO might hold 
does not hold any legal water. Contrary to the facts stated in the Position 
paper the case was not settled then but after Berkeley commenced their own 
action against USL. 

See the discussion at 
http://www.oreilly.com/catalog/opensources/book/kirkmck.html. 
That chapter also discusses the second case: "the University's suit claimed 
that USL had failed in their obligation to provide due credit to the 
University for the use of BSD code in System V as required by the license 
that they had signed with the University. If the claim were found to be 
valid, the University asked that USL be forced to reprint all their 
documentation with the appropriate due credit added, to notify all their 
licensees of their oversight, and to run full-page advertisements in major 
publications such as The Wall Street Journal and Fortune magazine notifying 
the business world of their inadvertent oversight. Soon after the filing in 
state court, USL was bought from AT&T by Novell. The CEO of Novell, Ray 
Noorda, stated publicly that he would rather compete in the marketplace than 
in court. By the summer of 1993, settlement talks had started. Unfortunately, 
the two sides had dug in so deep that the talks proceed slowly. With some 
further prodding by Ray Noorda on the USL side, many of the sticking points 
were removed and a settlement was finally reached in January 1994. The result 
was that three files were removed from the 18,000 that made up Networking 
Release 2, and a number of minor changes were made to other 
files. In addition, of 1993, settlement talks had started. Unfortunately, the 
two sides had dug in so deep that the talks proceed slowly. With some further 
prodding by Ray Noorda on the USL side, many of the sticking points were 
removed and a settlement was finally reached in January 1994. The result was 
that three files were removed from the 18,000 that made up Networking Release 
2, and a number of minor changes were made to other files. In addition, the 
University agreed to add USL copyrights to about 70 files, although those 
files continued to be freely redistributed."

See also: 
http://lists.q-linux.com/pipermail/plug/2003-June/028622.htmlhttp://www.interest
ing-people.org/archives/interesting-people/199402/msg00027.html
http://cm.bell-labs.com/cm/cs/who/dmr/bsdi/bsdisuit.htm
http://www.sco.com/company/history.html.

The Position Paper makes some comments on the import (or impairment caused by 
these events) I have set them out below with some comments inserted where 
appropriate):
 
"The exact terms of final settlement, and much of the judicial record, were 
sealed at Novell's insistence. The key provisions are, however, described in 
Twenty Years of Berkeley Unix: From AT&T-Owned to Freely Redistributable, 
[McKusick99]. Only three files out of eighteen thousand in the distribution 
were found to be the licit property of Novell (and removed). The rest were 
ruled to be freely redistributable, and continue to form the basis of the 
open-source BSD distributions today."

The words the "rest were ruled" implies some judicial decision making as a 
part of the settlement. There is none - a settlement of this type is an 
agreement, a contract binding only the parties to the litigation. There is 
not legal ruling or precedent achieved.

"If the current lawsuit proceeds, justice requires that the court and 
settlement records in the AT&T-vs.-Berkeley lawsuit be unsealed, with a view 
to determining the degree to which SCO/Caldera's IP claims are nullified by 
the results."

This seems a curious claim to me, this is a property/contract dispute not an 
equity matter - justice in the way it is used here may or may not be 
relevant; and to include the documents in the case may require a 
substantial evidentary victory. their exclusion as a part of the 
evidence may impair IBM's case. I am not going to try and examine whether 
or not the documents may be admissible (yet) but if they are not, which 
is arguable all of these of impairment come to nought. And even if they 
were admissible it seems from what I can find that USL/Novell held some 
property rights (in some files) that were and are capable of being infringed.

"If, as SCO/Caldera says, it inherited AT&T/USL/Novell's rights to Unix, it 
also inherited the res judicata that there are many sources of code and 
engineering experience in the Unix design tradition entirely independent of 
AT&T/USL/Novell's intellectual property."
 
Well the simple fact is that there is no res judicata as nothing about 
anyone's intellectual property has ever been decided by a court: "RES JUDICATA 
- 
Lat. "the thing has been decided" The principle that a final judgment of a 
competent court is conclusive upon the parties in any subsequent litigation 
involving the same cause of action"; see:http://www.lectlaw.com/def2/q036.htm.

"The USL-vs.-Berkeley lawsuit was the first major confrontation that the 
hackers won. Under the settlement terms, the Berkeley source code - and the 
Unix tradition with it - achieved the autonomy in law that it had always 
deserved in the minds of Unix programmers."

Well given what I have said above I can't (yet - I hope to be convinced) read 
the litigation this way. This impairment is also discussed in Halloween IX, 
but the discussion there doesn't seem to add anything that I haven't dealt 
with above.

But Halloween IX does deal with some other impairments. 

"Another significant source of impairment is the plethora of existing 
"perpetual" Unix licenses. These licenses were granted in return for a 
one-time payment requiring no ongoing royalties; they never expire, and they 
allow unlimited sublicensing and the creation of derivative works that 
explicitly belong to the licensee. IBM's original license to System V 
technology from AT&T is such a license, as shown by language in "Exhibit C" 
on SCO's own website, which is an amendment/clarification of IBM's System V 
contract. Paragraph 2 of Exhibit C explicitly allows IBM to create derivative 
works, and affirms that those derivative works belong entirely to IBM (except 
for any actual System V code snippets included in them, if any)."

Two preliminary things about this. The phrase "if any" leaves open a doubt - 
there could be some and if there are they are there in breach of 
contract/copyright. Second, it may be that subsequent agreements between SCO 
(or its successors in title may have affected these agreements) - we will have 
to dig a bit deeper to find out. But the point at this time is the impairment 
may leave open the possibility of some SCO property being used by IBM 
without permission.

"A third source of impairment is the simple fact that tens of thousands of 
copies of Unix source code have been circulating within the community for 
three decades. SCO itself puts the number at over 30,000 licensing agreements 
with 6000 entities (from the same 2003 Q1 SEC filing, bottom of page 20). 
Maintaining trade secret status on something like that is effectively 
impossible. One of the authors of this commentary is collecting evidence from 
senior Unix gurus who have source code to System V and derivatives in their 
archives, to prove that this code cannot have trade secret status."

But does it have status as copyright? Has that copyright been used or 
incorporated by people in breach of agreements or that copyright? 

So up until now, the big claim by OSI against SCO having any property in any 
UNIX has been the so called impairment by the USL litigation. You can see 
from this I find that a hard one to accept at the moment.

Martin

  

                   
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
"Mind you, I am not asking you to bear witness to what you believe false, 
which would be a sin, but to testify falsely to what you believe true - which 
is a virtuous act because it compensates for lack of proof of something that 
certainly exists or happened."
Bishop Otto to Baudolino

#  distributed via <nettime>: no commercial use without permission
#  <nettime> is a moderated mailing list for net criticism,
#  collaborative text filtering and cultural politics of the nets
#  more info: majordomo@bbs.thing.net and "info nettime-l" in the msg body
#  archive: http://www.nettime.org contact: nettime@bbs.thing.net