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The following is an archive of a post made to our 'vox mailing list' by one of its subscribers.

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Re: [vox] SCO suing IBM over their Linux activity
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Re: [vox] SCO suing IBM over their Linux activity



On Fri, 30 May 2003, Michael Wenk wrote:

> On Friday 30 May 2003 09:26 pm, Mark K. Kim wrote:
> > On Fri, 30 May 2003, Peter Jay Salzman wrote:
> > > is there a way that someone can force SCO into a court to either prove
> > > its claims or shut up forever?
> >
> > Can IBM sue SCO for making accusations without proof?
>
> One of the first things IBM will do is file a motion to dismiss with prejudice
> and request sanctions(ie, money) against SCO.  Its likely that this motion
> will be denied, as SCO probably has at least enough data to get past that...

Thanks for that info!

> > It reminds me more of the BSD vs. UNIX thing.  That actually had some real
> > issues that could be argued about.  If SCO wants to sue IBM then so be it,
> > but surely SCO can't sue Linus, can it?  If IBM had stolen code, Linus had
> > no way of knowing one of the contributors had stolen code.  Would you sue
> > the head of the Red Cross if someone donated stolen money to them?  Come
> > on!
>
>
> Suing Torvalds would be... pointless.  Even the symbolic value would be low to
> say the least.  Your analogy is poor, as if someone did donate stolen money
> to the red cross and the red cross refused to give it back then your only
> recourse would be a lawsuit.  However, Linus is not a company, and any money
> he does have is likely in foundations and trusts to protect him from this
> sort of thing.  Its likely that he has personal liability insurance, but the
> recovery from that would be pointless, even if a court found for SCO the
> probablity of recovery would be extremely low.  IBM on the other hand, has
> cash on hand and other business assets that SCO could take via tort.

I wasn't comparing money to money.  I was comparing sourcecode to money,
much like SCO was comparing sourcecode to a car (see SCO's quote below).
Just as the courts wouldn't penalize the Red Cross for *accepting*
donations, SCO shouldn't be allowed to penalize Linus for accepting kernel
patches without questioning its originality (at least without some reason
to question it.)

By the way, let's go back to the Red Cross analogy and ask an interesting
question.  Let's assume for a minute that the owner of the money requested
that Red Cross return the donated money back to him/her.  And let's assume
for a minute that the Red Cross, out of the fairness of their hearts,
decide to return the money.  Would the owner of the money sue the Red
Cross even after Red Cross decides to return the money, because they feel
the Red Cross should be punished for accepting the donation in the first
place?  Of course not!

But that's apparently what SCO is saying.  From Mike Simons' post, SCO
says:

  The open-source community, however, won't be be given
  an opportunity to remove any offending code and replace it with new
  material, he said. Instead, damages will continue to be sought.

  "It's sort of like somebody stealing your car, and you hunt them down
  and you find them, and they say you can have your car back, but there's
  no penalty for that," McBride said. "If there's no penalty for stealing
  property, then where are we?"

So apparently SCO wants not only the code removed, but also wants the
Linux community punished, possibly Linus directly.  I don't think that's
fair or reasonable, and I would think (and hope) the courts wouldn't let
something like that happen.

I hope that clears up what I meant.

> > Worst case scenario -- Linux kernel code gets revised.  Worst worst case
> > scenario that can't happen but wouldn't be so bad even if it did -- we all
> > ditch Linux and use BSD.  LUGOD changes its name to BUGOD.
>
> Worst case scenario is that the whole foundation of open source software is
> trashed.  Any company that has embraced Linux or any other open source
[snip]

I was being funny.  Ha ha...?

Of course you're free to put serious spins on them.  I just don't wanna be
misunderstood, in case I was.

> > One possible scenario I like -- Someone points out UNIX contains GPL code
> > so SCO is forced to open-source the entire UNIX code.  Take that!!  Ha!!!
>
> Biggest problem with that is precedence and case law.  From what I gather
> there's not much out there.  SCO could prove that the GPL did not apply, or
> is unconstitutional, or is incompatable with federal(or utah state law.)  If
> SCO loses however, well, I think the licensing of UNIX would become a moot
> point, as SCO would be bankrupt.

Well, once again I was just being funny.  But of course, you make several
good points.  I don't think SCO will win even if they tried to fight it
instead of modifying UNIX to be without GPL code (that's happened before
with other commercial software.)  And with IBM on our side, they sure will
go bankrupt if they go to the courts over the legality of GPL.

-Mark

-- 
Mark K. Kim
http://www.cbreak.org/
PGP key available upon request.

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