Subject: Re: SCO Drops Linux, Says Current Vendors May Be Liable (fwd)
From: "Federico Lucifredi" <>
Date: Fri, 16 May 2003 23:18:48 -0400

At least someone is laughing at all this ;-)


----- Original Message -----
From: "Brian Behlendorf" <>
To: "Matt Asay" <>
Cc: <>
Sent: Friday, May 16, 2003 9:03
Subject: Re: SCO Drops Linux, Says Current Vendors May Be Liable (fwd)

> On Wed, 14 May 2003, Matt Asay wrote:
> > "Is SCO litigating itself into irrelevance?"
> >
> > By definition, one must be relevant before one can become irrelevant,
> > through litigation or otherwise.  (-;
> >
> > There may actually be some validity to their complaint (wrt IBM
> > abrogating trade secrets in order to beef up the Linux kernel).  It's in
> > IBM's interest, but being in one's interest is not exactly conclusive
> > evidence.  I guess a super-competent judge will make that determination.
> >  Right.
> For as much as I think the courts make foolish judgements from time to
> time, I actually trust that most of the judges out there can differentiate
> between potential motive and proof of wrong-doing.  If there is code in
> the Linux kernel, and SCO can show it's unmistakably like code from their
> codebase, and that the contribution to Linux came from an IBM employee,
> IBM's in deep doodoo.  I don't think they'll have a case as strong as
> that, so even though there's a motive there's no smoking gun and a judge
> wouldn't find guilt.
> > Regardless, I'm disinclined to believe that a judge is going to try to
> > turn back history by finding against Linux in any way.  I mean, this is
> > the court system that found Microsoft to be a monopoly and still refused
> > to actually do anything about it.  What better way to actually enforce
> > their antitrust judgment than by letting Linux well enough alone, so
> > that it can beat up MS?
> Again, as much as I think courts make bad decisions quite often, I tend to
> think the courts do not play favorites or politics like that.  Maybe at
> the very top, where the Supreme Court judges have their own political and
> moral biases, does that matter.  At this level, I think they'll rule on
> the facts, just as they issued countless findings of facts and judgements
> in favor of MS over the last ten years.
> As for SCO's RIAA-like warning to the Linux community, I think they'll
> start getting heat from players claiming anticompetitive practices.
> Again, if their claims have merit and IBM let SCO code leak into Linux, I
> think the judge will find that IBM has to compensate SCO for the entire
> current value of SCO's IP - but it would make it much harder for SCO to
> similarly litigate anyone else in the future, as the IBM judgement will
> probably have covered everyone else.
> But that's worst-case.  SCO's market cap is $30M.  Why doesn't IBM just
> buy them?  That would be far less than what IBM's legal expenses
> will be on this.  Most likely it's because for IBM there's a principle at
> stake (settle with one, and everyone else will attack you on frivolous
> grounds too), and perhaps they've also done enough homework and auditing
> to know that SCO just does not have a case.
> > So, while SCO litigates itself into deeper and deeper irrelevance
> > (ironically by tying itself to the one mast that the rest of the
> > industry seems to be happily moving away from), I doubt that it's ever
> > going to get much satisfaction from it all, but for a possible slap on
> > IBM's wrist (if, in fact, IBM did anything wrong, which is by no means
> > clear).
> If there's a clear link - code verified as being SCO IP that was released
> in violation of SCO's agreement - then IBM's in trouble and shame on them
> for not keeping to their IP contracts.  If it were IBM on the other side
> of the table claiming IP infringement, their lawyers would be ruthless.
> $1B is a small fraction of the cash they have on hand (and a small
> fraction of the benefit they've seen from Linux, too.)
> Likewise if there are patent issues around this - patents that SCO owns,
> licensed (even just mutually) to IBM, then IBM implemented in Linux code -
> IBM owns so many patents that to be favorable to them when they violate
> someone else's patents doesn't seem fair.  Perhaps that would lead to IBM
> calling for a weakening of patent law, ironically enough.
> What's more interesting is if there's a less clear link - code that *looks
> like* or *embodies some ideas from* SCO source code that IBM licensed -
> then you're going to find SCO asking the court to define a new litmus test
> for when software is a derivative work.  I think that will be very heavily
> swayed by IBM's pro-open-source stance, and the army of people IBM can
> bring in to help make that case.  I would wager that such a result would
> mean that many companies out there afraid of opening their own code, or
> using third-party code (open or not), will be much less worried about the
> potential legal risks of doing so.  Thus, open source, & the idea of
> sharing code, wins.
> Brian