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Sunday September 07, 2008
18:11
The Caldera v. Microsoft Docket - All the Documents To Be Found, So Far
» ‎ GrokLaw

Here are all the documents still electronically available from the court in the Caldera v. Microsoft litigation, which settled in 2000. Very little is available any more, mainly orders, but you can learn quite a bit from reading orders. And the docket sheet itself tells quite a tale. What I could get, I've placed as links in the list.
We also have some extra filings from the case, thanks to Novell and Microsoft attaching them as exhibits to documents they filed in the Novell v. Microsoft antitrust case, currently in discovery in US District Court in Maryland. We'll make a Timeline page for it, and as new documents get filed as exhibits, hopefully we'll be able to flesh it out some more.
I notice from the notations in the PACER list that this must have been a real knock-down, drag-out discovery battle between Caldera and Microsoft, with Novell pulled into the ring too by Microsoft, which sent them four subpoenas. The last one Novell managed to get quashed. I don't believe that is the same as the subpoena that Novell filed as an exhibit [PDF] in the antitrust case, because that exhibit was offered by Novell as evidence of what Microsoft already should have in its files, since it got that discovery in the Caldera v. Microsoft litigation.
Poor Novell. It keeps having to endure the expense of doing this same discovery over and over.
Saturday September 06, 2008
08:22
2000 Caldera-Microsoft Settlement Surfaces in Novell v. Microsoft Antitrust Lawsuit
» ‎ GrokLaw

The Novell/Canopy/Caldera/DR DOS story continues, and Novell and Microsoft are in the middle of it all, battling in discovery in the Novell v. Microsoft antitrust litigation -- that is the litigation over WordPerfect currently before the US District Court in Maryland in pretrial discovery.
Microsoft politely asked for [PDF] all documents "relating to Novell's sale of PC operating systems claims to Caldera and Novell's involvement with Caldera's case against Microsoft", as well as "all documents produced by parties and third parties" in the Novell v. Canopy case. Why? Because it is its theory, which it wants to do discovery to demonstrate, that Novell sold all its antitrust claims to Caldera, and that would kill off the two remaining claims Novell has brought against Microsoft in the antitrust case. Microsoft, not satisfied with what Novell produced or its reasons for refusing to produce some documents, brought a Motion to Compel Discovery [PDF] [Memorandum in Support (PDF)], and it has just been granted [PDF]. In Novell's opposition [PDF] to the motion, it attached some exhibits, one of which is the settlement agreement [PDF] in the Caldera v. Microsoft litigation, as Exhibit K.
Finally, we get to read it, all except the exact figure that Microsoft paid to Caldera. But Microsoft does say, in the memorandum in support, on page 9, that Novell got "tens of millions of dollars" from the settlement, and a transcript [PDF] of a hearing in the Caldera litigation hints strongly, on page 9, that Novell contracted to get 20% of any recovery, so you can get an idea of how large the settlement figure was that Canopy received. I know some of you have wondered if that success inspired Caldera to sue IBM to try to get lightning to strike twice. The exhibits are where all the history comes out.
Thursday September 04, 2008
07:44
A Question About the Novell-Microsoft Deal
» ‎ GrokLaw

I've been thinking about something for a few days now. It's about the latest Novell-Microsoft deal that was announced on August 20, where Microsoft agreed to buy another $100 million worth of vouchers from Novell. I was wondering: how come two public companies can make a deal that seems to me to be material and yet keep pieces of the deal secret?
We never did get all the details about the original deal from November of 2006. And now there's this new one, which so far is only described in broad strokes. I wonder if we will be kept in the dark about some of its terms too? Isn't there supposed to be a filing within 10 days or so? How is the public to know whether to invest in either company, if we don't know what the deal's terms are with specificity? Are investors supposed to just guess?
Wednesday September 03, 2008
10:00
Psystar - Who Are These People?
» ‎ GrokLaw

It turns out that Psystar, the company being sued by Apple, is owned by two brothers, ages 22 and 24, according to a story in the Miami Herald, now on Free Republic's site:
Attorneys for Apple are accusing Psystar Corp., owned by Rudy and Robert Pedraza, of copyright and trademark infringement and breach of contract for building and selling "cloned" computers that run on Apple's Leopard operating system....
Rudy and Robert Pedraza, 24 and 22, grew up tinkering with computers and helping out at their parents' networking and IT business.... "Apple had to sue," attorney Randy Friedberg said Monday from Olshan Law in New York, where he handles intellectual property and technology matters. "They're very protective of their IP and their brand." Friedberg called the lawsuit "far-reaching" because of its demand to recall all computers Psystar has sold, which Apple estimates is in the thousands. "I think Apple's goal was to say: 'Don't screw with us,'" Friedberg said. "And I do believe they'll end up putting these kids out of business."
Someone sent me a link to a comment on the Internet alleging a supposed connection between Psystar and a securities fraud case, but after hours of digging, I believe I can demonstrate that it isn't the same folks. Let me show you what I found.
Monday September 01, 2008
23:54
CONSEGI 2008 Declaration -- Open Letter to ISO Reveals More OOXML Issues
» ‎ GrokLaw

There is an unexpected reaction from major government IT agencies in six countries condemning the ISO/IEC refusal to act on the four appeals against OOXML, which they say "reflects poorly" on ISO/IEC. They have signed and sent an open letter to ISO, which I'll show you in full. The countries represented are South Africa, Brazil, Venezuela, Ecuador, Paraguay, and Cuba. Here's a paragraph to give you a taste:
Given the organisation's inability to follow its own rules we are no longer confident that ISO/IEC will be capable of transforming itself into the open and vendor-neutral standards setting organisation which is such an urgent requirement. What is now clear is that we will have to, albeit reluctantly, re-evaluate our assessment of ISO/IEC, particularly in its relevance to our various national government interoperability frameworks. Whereas in the past it has been assumed that an ISO/IEC standard should automatically be considered for use within government, clearly this position no longer stands.
How in the world can ISO/IEC claim that the OOXML approval has not been damaging to ISO/IEC's reputation now? Have you ever heard of such a thing?
00:50
ATandT EULA's Terms Are Found "Unconscionable" - What Does That Mean?
» ‎ GrokLaw

I thought you might like to read a hot-off-the-presses appellate court decision [PDF] in a case from Washington State, McKee (Michael) v. AT&T Corp., where the court just found certain clauses in AT&T's EULA "unconscionable". I have it as text for you.
But what does that mean? This ruling will help you find out. The ruling explains what the term means. And there's a section on choice of law, too, which some of you were asking about the other day, so you can see how the court chose Washington State, despite the AT&T argument that it should be New York.
Now that we've decided to follow the Apple v. Psystar case, I was particularly interested in sharing it with you, because this ruling this will help you understand one of the affirmative defenses Psystar has raised, claiming that Apple's terms are both substantively and procedurally unconscionable. It's their 13th affirmative defense.
I also want you to see why I always tell you that it's in the court system that the little guy at least has a chance to get a fair shake, no matter how huge and powerful the other side might be.
Friday August 29, 2008
22:41
Novell and SCO Agree on Interest, Trust Amounts; Final Judgment Still in Dispute
» ‎ GrokLaw

Novell filed today, as per the deadline, two documents, one an unopposed filing regarding interest due Novell by SCO -- SCO has agreed to the sum of $918,122 in prejudgment interest and $489 per day until the final judgment is entered.
That could be a while. The second filing informs the court that Novell still believes that a final judgment is premature, since the arbitration is not yet finished. It reminds the court that those claims were automatically stayed by the Bankruptcy Court, and that while SUSE disputed that, SCO successfully argued that the automatic stay should include the arbitration. When the Bankruptcy Court partially lifted the bankruptcy stay to allow Novell to drag SCO back to Utah on the two issues we saw at trial (the amount owed, and whether SCO had the right to enter into SCOsource licenses), the claims in arbitration remained under stay, so both the Utah court and the Bankruptcy Court stayed the arbitration claims, so Novell's position is that this prevents entry of final judgment at the moment.
Novell says it understands SCO may want to file a motion "advocating some particular disposition of those claims." Novell says if they do, as Novell expects SCO will, Novell will respond at that time.
18:47
Here's Psystar's Answer with Counterclaims - Updated as text
» ‎ GrokLaw

Here it is, fresh off the docket, Psystar's Answer with Affirmative Defenses with Counterclaims [PDF] to Apple's complaint. We'll read it together. And I'll work on a text for you, so we can all discuss it in detail.
Update: I have the first half done as text. You can be reading it as I finish, and I'll tell you a couple of things to explain what I'm seeing.
First, there are styles of lawyering. Some lawyers, when responding to a complaint, deny everything, like Jimmy Cagney in a gangster movie being interrogated by the coppers. They don't admit nuttin'. Lawyers in that school, if there is an allegation that states that the defendant is a human, will respond with something like, "The phrase human is undefined and vague and on that basis defendant denies the allegation." This law firm is apparently in that category.
Second, my suspicions have been further aroused that this litigation is perhaps more gunfire aimed at FOSS, like the SCO litigation and the Jacobsen case and the Wallace antiGPL lawsuit, all strange and all using a surrogate who either sues on its own initiative or who seems to deliberately behave in a way to ensure litigation, followed by attacks on one of more FOSS license. Psystar is raising as defenses the "Apple Public Source License" and "other open source licenses" and the first sale doctrine, a topic dear to the heart of anti-GPL trolls. I think it's time to research who the Psystar people are and play Where's Waldo, just in case.
Third, I'm glad we have a trademark/trade dress case to follow. Why? Because as it plays out, I think you'll see why trademark law matters and how you can proactively defend your project from any barracudas out there.
Thursday August 28, 2008
15:56
SCO's Motion to Give Stock Options to 4 Executives
» ‎ GrokLaw

SCO has filed a motion [PDF], titled Debtor's Motion for (1) a Determination that Stock Options Granted to Executives Were Awarded in the Ordinary Court of Debtors' Business and (2) Continuing Authority to Grant Ordinary Course Stock Options. SCO says it consulted with the US Trustee's Office and it says it takes no position on this motion. But SCO says they are filing the motion "in an abundance of caution." And it has filed a motion [PDF] to be able to file evidence and give testimony about the stock plan under seal.
Well. I would want that too, I'm thinking, all things considered. It's comforting to know there are still people on earth who still want SCO stock. Relax. Just joking around.
The first motion has to do with stock options granted under the SCO 2004 Omnibus Stock Incentive Plan, attached as Exhibit A [PDF], options that SCO granted on August 26, 2008. That was Tuesday. So they granted them and now they are asking the court to say it's OK and to let them do it again in the future.
The plan "is designed to promote the interests of SCO and its stockholders by incentivizing and rewarding employees who make a long-term contribution to the success of the company," SCO says. But trust me, if you want to know just how incentivized the SCO executives have been, you probably want to read their 2008 Proxy Statement, filed with the SEC on March 5, 2008. Looking at both documents together brings them both into a more nuanced context.
Wednesday August 27, 2008
22:07
For the Sake of History, a Novell 1994 10K: Unix source and UnixWare 2 separate products
» ‎ GrokLaw

Do you remember Darl McBride testifying at trial in SCO v. Novell in April that if you wanted to get Unix source code, the only way to get it was to license UnixWare and that UnixWare was just the latest version of Unix? The court believed that story, so for the sake of history and truth, then, here is a Novell SEC 10K filing from 1994, when Novell was the place you went to in order to license UnixWare and Unix System V. They sold both UnixWare and Unix source code as two separate products.
17:00
The Apple v. Psystar Litigation
» ‎ GrokLaw

I've been getting email asking if I'll be covering the newly filed Apple v. Psystar litigation. Here's Apple's complaint [PDF]. I must tell you frankly that I was in the "a pox on both their houses" category, so I thought I probably wouldn't do so in depth.
But then I noticed media reports that Psystar has announced that it will be filing antitrust (!) counterclaims. Antitrust? I couldn't help but reflect -- and I confess it was my first reaction -- that it's so odd that all Microsoft's competitors end up dealing with unexpected allegations, sometimes from small companies, against them in court or before regulatory bodies that just happen to threaten their viability in the marketplace.
Remember Google was accused, and cleared, of an antitrust allegation in the US and before the EU Commission? And IBM was accused of copyright infringement in connection with Linux by SCO, as laboriously chronicled right here on Groklaw. And now Apple has to deal with litigation counterclaims that, so far, seem to me to be dubious at best from a company that just suddenly showed up last year doing things that a first-year law student, or even a mere paralegal like myself, would assume were going to get them royally sued into nonexistence. Now there are announced counterclaims that just happen to go to the heart of Apple's business.
Tuesday August 26, 2008
04:21
New Novell Deadline for Filing Brief on Interest, Judgment and Some 2003 SEC Filings About SCOsource
» ‎ GrokLaw

The parties stipulated to another extension on the deadline for Novell to file a brief describing what pre-judgment interest it wants from SCO on the amount ordered by the Utah District Court on July 16. The new deadline is August 29. Just a brief note in case you were wondering why there was no filing on the 22nd
Also, I was going through some older materials, and I found a color-coded comparative chart [PDF] that a volunteer made for us long ago. It's a comparison of a July 8, 2003 S3 with an October 14, 2003 amendment, an S-3/A. There was a further amendment, an S-3/A filed on October 23, 2003 as well. It's fascinating to watch the SCO story morph just in these three versions, particularly now, when we can compare all three with what SCO testified to at trial.
Sunday August 24, 2008
15:27
Interview with Richard Hulse of Radio New Zealand, on the decision to offer Ogg Vorbis
» ‎ GrokLaw

When I read that Radio New Zealand had just decided to start adding Ogg Vorbis files to their online offerings, I was curious. How do folks make such decisions? I surely wish everyone would do what Radio New Zealand has just done.
So I asked Richard Hulse of Radio New Zealand, the station's media manager, to tell me how they came to decide to add Ogg Vorbis to their collection of interviews and broadcasts, already offered as MP3s and in Windows Media Audio. His answers are instructive, and you may find it helpful to note his suggestions on how to effectively request other sites to offer Ogg Vorbis files. And if any of you wish to respond to his requests for help with a how-to, please feel free to lend a hand to make this a success.
Saturday August 23, 2008
17:22
KDE Adopts Fiduciary Licence Agreement Option
» ‎ GrokLaw

KDE has decided to offer its code contributors an option to use a Fiduciary License Agreement that it worked out with FSFE's Freedom Task Force. It's a recommendation, not a requirement. It's a copyright assignment vehicle designed to ensure legal maintainability of the project. And I hear that the response has been very positive already.
At first I was going to put the FSFE press release in News Picks, but I consider this such a wise legal decision on KDE's part, because -- as the press release phrases it, it "enables projects to ensure their legal maintainability, including important issues such as preserving the ability to re-license and certainty to have sufficient rights to enforce licences in court" -- that I am putting it here, so you will consider it too for your project, especially if yours is an international project. If you have questions, here's the Freedom Task Force contact page. Notice in the press release that the FLA template was used to come up with an FLA for KDE in particular, and you can do something similar for your project, with the Freedom Task Force's help.
I also wanted to mention that FSFE has a Legal and Technical Network now:
The Freedom Task Force coordinates a European Legal and Technical Network. Each participant is referred to as a 'delegate' of the respective network. Membership is by invitation only and if you are interested in participating you can contact us.
Our goal is to strengthen the legal foundation of Free Software through building connections between professionals and researchers active on the continent. The network currently has over 50 legal experts, over 30 technical experts and covers sixteen European countries. It also maintains contacts in Canada, the USA, South Korea, Singapore and Taiwan.
Some network delegates are explicitly recommended by FSFE. To be explicitly recommended the delegate must be approved by the governing council of FSFE.
I think, after thinking a lot about Jacobsen v. Metzer, that the US needs something similar, a place where you can go to find attorneys who know something about FOSS and understand how to protect your interests without doing damage to the FOSS ecosystem at large.
Thursday August 21, 2008
13:07
Hong Kong -- Here Comes Me Inc Software! -- and More Bankrupcy Bills
» ‎ GrokLaw

More bills, bills, bills in the bankruptcy, but it's winding down. But SCO is winding up. Guess where Me Inc Software, the subsidiary, is located? In Utah, or Delaware, or anyplace that the US bankruptcy court in Delaware or the creditors can get at the profits, which SCO executives have described as an anticipated "river of revenue"? Nay, m'lords. In Hong Kong. We learn from the bills that there is a Me Inc Software foreign subsidiary now in China, filing profits tax forms.
So, what do you think? Can Novell get its money from a Hong Kong foreign subsidiary? I'm sure we all agree that SCO would never try to stiff anyone, so the fact that they are setting this up just before the bankruptcy court is about to decide on the question of how Novell will get the money the Utah court decided SCO owes them must be entirely coincidental. I feel a song coming on:
Ah, sweet mystery of life
At last I've found you...
T'is love and love alone that can repay
I hope Novell likes music, because methinks it will never see that $3 million. The other creditors? Do they still hope? Like a raisin in the sun. Hark! There is one, buried in the bills, asking about the status of the case. Dream on, my friend! Lie back, try to relax, while I tell you about Hong Kong.
Wednesday August 20, 2008
14:54
German Court: SCO Must Pay a Fine. Yes. Again.
» ‎ GrokLaw

SCO was taken to court again in Germany, by one of the companies that got an injunction years ago, Heise is reporting, and now it must pay a fine to the company, Thinking Objects Software GmbH. Three companies took SCO Germany to court back then, and this is one of the three. I'll show you a computer translation first of the headline in Heise. It is perfection:
SCO Group Germany must check software updates of the nut/mother company message to read out
Sounds like a job for ELIZA. I'll try to explain what I understand the article to be saying, but if you have a better translation, please provide it.
SCO was enjoined from making certain claims in Germany, and it signed an agreement in 2003 not to say them there, because its alternate choice was to have to prove them immediately, so it chose silence. As a result, SCO can't say in Germany that Linux violates SCO's IP or that end users could be liable for violations of SCO's intellectual property or that Linux is an unauthorized derivative of UNIX. Unless it can prove it. Good luck with that. SCO hasn't been successful proving that anywhere, so it can't say that in Germany. But the US website makes such claims, which were apparently shown in Germany too. Naughty, naughty.
It seems that SCO pled the "we didn't see what the US was doing when it updated the page" defense, but it was told that it used that excuse once before, so now it must pay a fine to the complaining company. Here's an incident that happened in 2007, to refresh your memory. And here's a 2003 offense, for which SCO was ordered to pay a 10,000 EU fine. Are they incorrigible? Well. Let's leave that to God. However, the Heise report indicates that they are at least repeat offenders.
Tuesday August 19, 2008
21:28
AutoZone Stirrings
» ‎ GrokLaw

Most of the attorneys who are listed as being involved in SCO v. AutoZone have been told that by the court they are in violation of Special Order 109, which is a requirement to participate in the electronic filing system. They are instructed to go to the US District Court for the District of Nevada website and sign up.
It sounds quite alarming, the way it's worded, but trust me, they don't drag them out at dawn and shoot them for this or disbar anyone. It's just the wording of the notice, which is standard. You can find Special Order 109 [PDF], In re: AUTHORIZATION FOR CONVERSION TO CASE MANAGEMENT/ELECTRONIC CASE FILING, here. It's local to Nevada, but it's part of the federal court system switch to digitalization. The Clerk of the Court is responsible to keep the official record, and so there has to be a way to identify when an attorney is who he says, when a document if filed. So this is what it refers to, that they need passwords and such. It also represents their consent to being served electronically.
14:39
Judge Lifts Restraining Order: MIT Students Win
» ‎ GrokLaw

Kurt Opsahl of EFF has just announced that the restraining order on the MIT students has been lifted:
Today, Judge George O'Toole lifted the gag order on three MIT students who were sued by the Massachusetts Bay Transportation Authority for discovering a security vulnerability in the MBTA's fare payment system. The Court found that the MBTA was not likely to prevail on the merits of its claim under the federal Computer Fraud and Abuse Act. MBTA had argued that the CFAA, which prohibits the transmission of a program that causes damage to a computer, also covers "verbal transmission," such as talking to people at conferences. Judge O'Toole, however, looked closely at the statute, and held that the CFAA does not apply to security researchers like the students talking to people. More details to follow.
So the attempt to stretch the Computer Fraud and Abuse Act has failed. Please read the statute for yourself, and ask yourself: do you want talking about computers and security to become a crime punishable by fines and imprisonment and subject to FBI and Secret Service oversight? That's what almost just happened. You can find the documents in MBTA v. Anderson here. If you read the MBTA's complaint, you'll find the allegations of violations of the CFAA on page 12. I think you'll find the MBTA interpretation of the statute shocking ("... the damage constitutes a threat to public health and safety... affects a computer system used by a government entity for national security purposes..."). The research was about getting a ride on a subway for free. In any case, the judge didn't buy it, with respect to the restraining order.
Monday August 18, 2008
23:12
No Further Appeals on OOXML? What About 11.4?
» ‎ GrokLaw

I've been puzzling over something in the ISO press release announcing that the four appeals against OOXML as an ISO standard, from Brazil, India, South Africa and Venezuela, would go no further. In the press release, it said this:
According to the ISO/IEC rules, DIS 29500 can now proceed to publication as an ISO/IEC International Standard. This is expected to take place within the next few weeks on completion of final processing of the document, and subject to no further appeals against the decision.
Wait a second. What's that "subject to no further appeals against the decision" part? What rules would those be? When I read the JTC1 Directives, Edition 5, Version 3.0 [PDF], I see in the section on appeals another step you can take if the TMB/SMB decide not to proceed with your appeal, which is what just happened:
11.4 Appeal Against a Decision of the TMB/SMBs
An appeal against a decision of the TMB/SMB shall be submitted to the Secretaries-General with full documentation on all stages of the case.
The Secretaries-General shall refer the appeal together with their comments to the members of the Councils within one month after receipt of the appeal.
The Councils shall make their decision within three months.
So, ask your lawyer, but I read that as saying a denial by the TMB/SMB is *not* necessarily the last word, no matter what the press release said, if an NB wishes to bring the appeal to the next level, which would be to the "Secretaries-General" and "the Council".
Who's that? How does that work? I've done some digging, and here's the joke. Three of the appealing NBs are listed as members of the Council. Again, ask your lawyer, but here's what I've found.
09:05
More Bankruptcy Filings and SCO Predicts a Bright Future for Itself
» ‎ GrokLaw

More bankruptcy filings. And there are upbeat chirpings in the air in Utah, with SCO proclaiming its own future brighter than they thought it would be, and you can read all about it in Tom Harvey's article in the Salt Lake Tribune, which calls SCO "the comeback kids". No bias there.
It might be a tad early for that title, methinks. IBM still looms on SCO's horizon, after all. Novell was a sideline. The main event has yet to occur.
SCO doesn't need as much money as they thought they would to give to Novell, so maybe Darl McBride can stay on as CEO after all, we learn. There's a new business plan that sounds like it has to do with calendars online and messaging, and ... well, read about FC Mobile Life, its project with FranklinCovey, for yourselves:
That type of transaction is essentially what happens with the FranklinCovey product FC Mobile Life, which provides near-instant communication for scheduling, delegating tasks and sending text, photos and audio, said Jeff Hunsaker, SCO president and COO.
"Our focus here is on collaboration, and it's real time. It's real-time collaboration with people you trust, with a group. We've kind of brought it all together. That's the value we bring here."
FC Mobile Life can work on BlackBerries and phones running Windows Mobile, with iPhone compatibility under development. The system interacts and updates information on a Web browser and smart phone. SCO also is working to integrate Microsoft's Outlook e-mail and calendar into the system.
So that's the plan. The new one. Real time collaboration with people you trust. Hmm. Trust ... People you trust. Hmm. Remember when they used to call Darl McBride "the Linux Killer"? Methinks that's still the real business plan. In his dreams.
Sunday August 17, 2008
03:07
Caldera Press Releases, 1996-2001
» ‎ GrokLaw

SCO keeps changing its story of "infringement", and so over the years, we've tried to track all the twists and turns, comparing their allegations with evidence available on the Internet or in our collections. SCO made it harder when it removed its collection of press releases from its site and from the Internet Archive. I had forgotten all about it, but years ago, before they did that, I had saved their list of older press releases, meaning for us to eventually look at all of them. Then, they disappeared, and I just stumbled across the information again now, and I'd like to share it with you. Even the names of the press releases could be useful. If anyone gets sued at any point, at least they'll know what to ask for in discovery.
I also discovered a wonderful site, Sourcewire that still has tons of Caldera press releases from 2001. Here's one I found there, the announcement about OpenUnix 8. That's the one with LKP, the Linux Kernel Personality. Guess what LKP included?
The LKP technology in Open UNIX 8 will include the same GNU tools and libraries built into Caldera OpenLinux(tm), which were developed with close adherence to the specifications of the proposed Linux Standards Base (LSB). Open UNIX 8 will track this developing standard, assuring the highest degree of application compatibility.

Libraries, eh? How fascinating. Isn't this fun? And what a dovetail, in that we just showed you what was included in OpenLinux. I have some more to show you on that in a later article. But do you see how valuable all scraps of information are? You just never know when it will matter in litigation, somewhere, some time.
Saturday August 16, 2008
03:40
Santa Cruz and its "Linux Strategy" Back in the 1990s
» ‎ GrokLaw

Here are some more screenshots for you, showing the real Santa Cruz Operation relationship with Linux before the modern day SCO Group began suing the world and its dog. Back in the late 1990s, Santa Cruz had what it called its "Linux strategy". It included both money and support to help Linux succeed.
Our first headline, from 1996, is "SCO Sponsors Linux." Yes, Santa Cruz represented itself at the time as hopping on board the Linux train, which even back then was being used in the corporate environment. At the time, SCO wanted to encourage Linux as an alternative to Microsoft, which at the time was considered its "enemy". In a press release, it talked about its "ongoing strategy to support the Linux and Open Source movements". Let me show you, please, what I found.
Friday August 15, 2008
14:09
OOXML Appeals Rejected
» ‎ GrokLaw

I know it will not surprise you to hear that ISO/IEC have rejected the four appeals against OOXML. Here's their press release. Now what? Andy Updegrove:
Under the ISO rules of process, this now paves the way for the as-adopted version of OOXML, now called IS0/IEC DIS 29500, Information technology - Office Open XML, to proceed to publication. That version is substantially different than the current implementation of OOXML in Office 2007, and its text has still not been publicly released by ISO/IEC. According to a joint press release, "this is expected to take place within the next few weeks on completion of final processing of the document." Intriguingly, the press release goes on to say, "and subject to no further appeals against the decision.
That should be hilarious, when they publish it and anyone tries to actually use it. Anyone? Buehler?
Keep in mind that Microsoft's Office 2007 does not implement OOXML. No one does. How could they? Why would they?
What really happens next: the complaints lodged with the EU Commission. ISO/IED decided to go down with the ship.
Thursday August 14, 2008
22:02
Status Conference in AutoZone Sept. 22
» ‎ GrokLaw

There is a status conference scheduled in AutoZone for Monday, September 22nd at 9 AM. Here's the notice on PACER:
71 - Filed & Entered: 08/14/2008
Minute Order Setting Hearing
Docket Text: MINUTE ORDER IN CHAMBERS of the Honorable Judge Robert C. Jones, on 8/14/2008. By Deputy Clerk: K. Goetsch. IT IS HEREBY ORDERED the parties shall appear before the Court for a Status Conference on Monday, 9/22/2008, at 09:00 AM in LV Courtroom 7D before Judge Robert C. Jones.(no image attached) (Copies have been distributed pursuant to the NEF - KXG)
I don't know if one of the parties is initiating this stirring of the dust in Nevada, or if the judge wants to find out if this moribund case is ever going anywhere, but he may have some questions after reading the parties' status report SCO filed recently. Perhaps he is of the opinion that litigation should have an end, not just a beginning.
Of course, SCO being SCO, they'll do the "but we were only found liable for $3 million" dance, I suppose, and the "we own OpenServer" do-se-do, and OpenServer is part of what AutoZone was allegedly about. So, if you want to review all that, here's SCO's Complaint and Groklaw's AutoZone Timeline, where you can find all the filings, and the article on SCO's Free-OpenServer we recently published.
14:30
OK. But What Does It Mean? (Jacobsen v. Katzer)
» ‎ GrokLaw

I've been getting a lot of requests to tell you what the appeals court ruling in Jacobsen v. Katzer means. Some would like me to simplify and just tell you the bottom line, so here it is, my take on what it all means:
It means that while OSI's handling of a list of approved licenses worked very well for a community made up of FOSS programmers, who are decent folks all on the same page overall, now that enemies of FOSS are attacking, we need a new organization to vet licenses going forward a lot more carefully, one made up of experienced FOSS lawyers, none of them with a history of hostility to, or ignorance of, the GPL, with the community as advisors.
Well, you asked me "what it means", and that is my opinion. Licenses now matter in a way that they didn't in the good old days, and it's time for programmers to realize that writing a license, and choosing one, is best left for lawyers, because what you write and what you choose can impact the entire community in ways you don't even understand, in ways that can undermine and even destroy it.
I'll write an article explaining why that is my opinion in due time, but it's so complex, this case, that it will take some time. But that is the bottom line as I see it. This case was very nearly a serious disaster for FOSS, in part because the Artistic license was vulnerable to attack, and the FOSS lawyers had to do a lot of work to get this to come out the right way. Going forward, we need to make sure we avoid obvious pitfalls in license language, and licenses that don't meet a set bar should not be approved.
Wednesday August 13, 2008
13:21
Court of Appeals for Federal Circuit Overturns Jacobsen v. Katzer
» ‎ GrokLaw

This just in: the United States Court of Appeals for the Federal Circuit has just overturned [PDF] the lower court's decision in Jacobsen v. Katzer, the model train case. It held that open source license conditions are enforceable as a copyright condition and that the Artistic License is no different in that respect. Proskauer Rose's New Media & Technology Blog explains the case, and here's the most important piece:
This is a highly significant opinion that will greatly bolster the efforts of the open source community to control the use of open source software according to the terms set out in open source licenses.
The central issue in the case is whether the conditions in the open source Artistic License limit the scope of the license (in which case a failure to comply with those conditions constitutes copyright infringement) or whether those conditions are in fact merely covenants, the breach of which gives rise only to a cause of action for damages. For an open source licensor, the difference between those two causes of action is particularly relevant because because injunctive relief usually is not as easily available in a breach of contract action. In a copyright infringement action, however, statutory damages and injunctive relief are more readily available, regardless of whether actual damages can be shown.
The appeals court concluded that the Artistic License "on its face ... creates conditions." The court pointed to the literal language of the license, which expressly refers to "conditions under which a Package may be copied," and the use of traditional language to create conditions, i.e., the use of the term "provided that," which creates a condition under California law. The appeals court concluded that the district court failed to credit the explicit restrictions in the license that sought to govern the rights to modify and distribute code licensed under its terms...
Whew! As the court put it, "Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material." So, now the case goes back to the lower court to reconsider, based on this ruling, the question of injunctive relief.
10:13
MIT Students Ask Court to Vacate TRO; Who's Who in Computer Science and Security Sign Letter in Support
» ‎ GrokLaw

The MIT Students have now filed their response to the Massachusetts Bay Transportation Authority's Motion to Modify the terms of the temporary restraining order it got from the court. There is also a letter from a group of computer science professors and computer scientists in support, along with two declarations and exhibits. They ask that the court reconsider and vacate the TRO to allow the students to publish their research for three reasons:
(1) the order is an unconstitutional prior restraint on First Amendment protected speech about their academic research,
(2) the Computer Fraud and Abuse Act does not prohibit communication of information about computers or computer security, and
(3) the MBTA's publication of the defendants' research and presentation slides undermines its claim to injunctive relief.
Illustrating the First Amendment issue, EFF, which is representing the students, points out in this statement by Kurt Opsahl that while the MBTA has been issuing statements to the media about the research, the students are unable to speak in response under the original TRO.
Tuesday August 12, 2008
08:08
SCO Asks to Extend Exclusivity Period Again - Hearing Sept. 16
» ‎ GrokLaw

SCO has filed a motion [PDF] asking for a third extension of the exclusivity period. It wants 105 days after any final judgment is entered in the SCO v. Novell litigation. Since at the moment no one knows when a final judgment will be filed, it's a request for an open-ended extension. The hearing on this motion is set for September 16.
SCO's reasons for its motion are several: first, that Novell is asking for more money than SCO thinks is reasonable in pre-judgment interest in the Utah litigation. That means the issue may have to be worked out in motions to the Utah court. It wants to know, and its potential backers do too, SCO says, exactly how much SCO owes and also how long it will take for the appeal to be filed. Until there is a final judgment, SCO can't file a notice of appeal. Novell has raised the issue in Utah that until the Swiss arbitration is decided, some claims in the litigation are still pending, and so a final decision is not possible yet. So that may have to be litigated too. Then the bankruptcy court has to decide about the constructive trust.
According to SCO, the Stephen Norris deal is still being worked on, though they say now it might be either a buyout or a loan after all, and it hints at others potentially interested in funding SCO. But they want some clarity on when the appeal will be entered.
Does that make sense to you? After all, SCO mentions a figure of potential claims against SCO in the amount of $96 million, above and beyond what it owes Novell. Should it get an extension until all the claims against SCO are decided? Now, *that* would be clarity. Why is an interest calculation on $3 million or so and a date for a filed notice of appeal enough to give potential backers a feeling of finality, with so much to come? There is a much bigger cloud waiting on the horizon than anything Novell ever represented.
Anyway, SCO asks for an extension of time to file a reorganization plan, setting a new deadline at 45 days after a final judgment is filed in the SCO v. Novell matter, and then 60 days after that to "seek approval from impaired classes of such a plan."
Monday August 11, 2008
20:03
Massachusetts Bay Transportation Authority Files Motion to Modify Terms of TRO
» ‎ GrokLaw

The lawyers for the Massachusetts Bay Transportation Authority have just filed a motion asking for a modification of the terms, but not the duration, of the temporary restraining order [PDF] it won against the MIT students who had wanted to present a security paper at DEFCON on vulnerabilities in Boston transit cards. I'll show you the motion. It asks that the terms be altered to "correct any public or intra-party misperception concerning the TRO and the MBTA's goals in this matter" so we don't get the impression they are trying to act unConstitutionally by interfering in free speech.
I'd say the cluetrain is nearing the station. It's a culture clash thing, from the looks of it, like maybe the MBTA folks thought they were dealing with script kiddies, and now they realize that others view this paper as authentic security research, which is mostly already out there anyway. This Declaration of Eric Johanson [PDF], a security consultant for the MIT students, might be what started the plaintiffs realizing this was a horse of a different color. Johanson states that it is his professional opinion that the information in the slides of the MIT presentation are based on public information, and that the key information needed to compromise the security of the MBTA's system is excluded from the presentation.
But here's the kicker. The MBTA filed the students' report as an exhibit with PACER, which included the confidential information the students had deliberately excluded from their presentation, thus making it publicly available to the world. The students' attorney, Jennifer Gralnik, writes to the MBTA suggesting they urgently remove it. Which they have, from all I see. You can read her email in this exhibit [PDF] on the last two pages.
18:11
The Indie Band Survival Guide, new book on how to succeed on your own
» ‎ GrokLaw

Groklaw member ExcludedMiddle tells us:
Hey folks. I just thought that you'd like to know that I have become a new author of a book published by St. Martin's Press/Macmillan. I've been on here since the beginning, and I just wanted to share, partially because the book is probably of interest to you guys. Lawrence Lessig was an inspiration for the book, and after sending him a copy, he liked it so much that he wrote a blurb for it. It was also covered by the Creative Commons in a recent blog entry.
The book is the Indie Band Survival Guide, and is available at Amazon, and all of the major bookstores. It tells musicians exactly how to succeed on their own, entirely without music labels.
In the book, I advocate the use of Creative Commons licenses, argue that file sharing is an excellent way to get your music heard, and talk about the balance between copyright and commerce, which I know are topics dear to Groklaw denizens.
14:22
Hearing Postponed on Gifting York- New Date Sept. 16 [or never?]
» ‎ GrokLaw

It will not surprise you to learn that there has been another postponement of the hearing on SCO's desire to give some unearned money to York Capital Management. If you recall, SCO claimed it felt a moral impulse to pay them even though it doesn't have to. The new date in bankruptcy court for that hearing will be September 16.
Or never.
If I were SCO, I wouldn't want to have to argue that crazy motion either. So, what I'd do is keep postponing until I could file a reorganization plan first, and then after I got out of bankruptcy I could give them whatever I wanted to, without oversight. If I couldn't postpone that long, I'd tell the court I'd dropped the motion. Then I'd pay them later, for whatever the real reason is. Why SCO wants to pay them, and who are they representing anyway, is the real story, I would think. What hold does York, or whoever they are representing, have over SCO? Personally, I discount morals.
Happily, I'm not SCO, so I don't have to think up junk like that or worry my pretty little head over it. Poor SCO. Apparently, they do have to.
Sunday August 10, 2008
16:33
Free-OpenServer. What a Concept!
» ‎ GrokLaw

In case SCO tries to resurrect any methods and concepts claims to OpenServer or UnixWare, let me remind the world that beginning in 1996, they gave that away themselves when they offered Unix enthusiasts free licenses to what they called Free-OpenServer. Here's the announcement as PDF, "SCO Provides FREE* UNIX System Licenses to Students, Educators and UNIX Enthusiasts around the World". Buh-bye methods and concepts claims. At a minimum. And guess what they threw in? A free software development kit:
The SCO OpenServer Development system is comprised of a set of state-of-the-art compilers, debuggers, application programming interfaces (APIs), and libraries needed to develop applications. The SCO OpenServer Development System can also be augmented by over 200 third-party development tools to create the most robust and efficient development environment.
No kidding? APIs and libraries so you could develop applications, eh? SCOsource is dealt yet another blow.
Well. Maybe a kick. I don't think it's still standing any more.
Free-OpenServer. What a concept! Here's what else I think it means: that even if SCO did win a reversal on appeal, and the appeals court decided SCO did get all the copyrights under the 1995 APA, it still can't go after anybody for methods and concepts in any code that dates back before 1996 (and maybe later), and I have long believed that was the real dream.
Saturday August 09, 2008
04:54
Lawyer's Funny AntiLinux FUD Turns Out to be Not So Funny
» ‎ GrokLaw

I put this article from Law.com's Legal Technology page, "Commentary: The Penguin Doesn't Fly, Avoid Linux" in News Picks because I found it hilarious, in the Rob Enderle kind of way. But then I thought I'd look up the author on Google, and lo and behold, I find he said something that appears to be not exactly true. I'm not talking about the FUD stuff. I'm talking about his assertion that he couldn't get any answers to a request for help from Mandriva Forum:
And, Linux proponents claim that if there is any kind of problem, or a viral threat or other OS disaster, there is an army of Linux programmers standing by to remedy the situation.
But these claims do not reflect my experience. I tried to install Puppy Linux without success -- and my e-mails to the developers were ignored. Ark Linux developers could not explain why my computer's Wi-Fi card didn't work. The Ubuntu forum could not explain why a DVD player would not eject. The Mandriva support site did not respond to queries at all. And it took a tech support person from Wine, a program supposed to allow Windows applications to run on Linux computers, 6 days to finally respond to my requests for help; which he was unable to resolve.
I know. I love that touch about a viral threat in Linux. Hilarious. But look what I just found: two pages of responses to a request for help from someone with his name. If it's the same individual, it's not so funny now.
Thursday August 07, 2008
14:09
Some Pictures Worth a Thousand Words - Caldera OpenLinux Lite
» ‎ GrokLaw

I have some screenshots from an old Caldera OpenLinux Lite CD that a member still had in his possession to show you. They disprove certain allegations SCO has made regarding Linux, I think, in the IBM litigation. For example, SCO claimed that it never released anything under the GPL. And it tried to allege that some headers and other features were their property and that Linux infringes them. I will show you differently.
Interestingly, the CD's Credits file mentions Ralph Yarro, among others. The copyright information states that they used Red Hat's Linux and then added some tweaks of their own to it, and they list files and applications that were not under the GPL, and none of the files in the screenshots are listed as excluded. All the rest, they say, were distributed under the GPL. The Announce file is particularly interesting, because it mentions ELF directly, and that speaks to whether SCO knew what they were distributing under the GPL. I asked Dr Stupid to look at the screenshots and tell me what it means to him, and here's what he told me:
Well, it's confirmatory evidence that Caldera shipped errno and STREAMS under the GPL, in particular that they took the conscious decision to include STREAMS (since Red Hat didn't.)
The ANNOUNCE file, where they specifically point out ELF support, is useful as it shows that inclusion of elf support was not accidental. And at the time, it was still just about possible to create a Linux system that only used a.out (i.e. to remove ELF support) although it would have been a lot of work if you were starting with a copy of Red Hat.
So, let me show you the the screenshots now.
Wednesday August 06, 2008
17:29
The Appeals Court for the 10th Circuit Sends a Letter of Instructions
» ‎ GrokLaw

The United States Court of Appeals for the Tenth Circuit, Office of the Clerk, has sent a letter reminding the individual wishing to appeal the order denying him the right to intervene in the SCO v. Novell case that there is a $450 fee to be paid to the US District Court within 30 days, or an application filed to proceed in forma pauperis, and giving futher instructions on how to avoid having the appeal tossed. They've seen this before, I expect, and likely they have a form letter. Here's the docket entry:
08/06/2008 547 - USCA Case Number Case Appealed to Tenth Case Number 08-4154 for 545 Notice of Appeal filed by Jonathan Lee Riches. (jmr) (Entered: 08/06/2008)
Tuesday August 05, 2008
14:53
An Appeal in SCO v. Novell - But Not the One You Expected
» ‎ GrokLaw

The guy who tried to intervene from prison in SCO v. Novell and was denied has filed a notice of appeal. That means the court clerk has to send the entire docket to the appeals court with his notice and the original order.
I started to feel a measure of indignation, but then I realized that I feel pretty much the same way about SCO tying up the courts with what I view as nonsense. So what can you do? Some folks will do performance art, some will misuse the courts for anticompetitive reasons, etc. It is what it is.
The court has already sent the necessary papers along. Also, the court has granted Novell an extension of time to file a proposed final judgment and pre-judgment interest submission, which the parties had stipulated to. The new date is August 22. The parties had jointly made the request for more time, because they are negotiating to try to resolve some remaining issues between them, including one big one -- should this be a final judgment prior to the arbitration and the constructive trust being decided?
Monday August 04, 2008
00:28
88% of YouTube is New and Original Content, Professor Says
» ‎ GrokLaw

Dear Viacom, and everybody who thinks like you,
I want you to watch a video that goes beyond that statistic, although it's where I found it. It's a video produced by Dr. Michael Wesch, an anthropologist at Kansas State University who teaches a class on Digital Ethnography and who studied the YouTube phenomenon. He calls it participatory observation. After studying hundreds of thousands of videos, he came up with that statistic.
This video, "An anthopological introduction to YouTube", is a presentation he gave at the Library of Congress on June 23, 2008. Aside from being fascinating, it's fun and enjoyable to watch.
If you watch it, you'll find out why fair use matters, what it makes possible, and how big media is endangering it with their closed and restricted concept of what fair use allows. Actually, they'd prefer to kill fair use altogether. It's only fair if *they* do it. Yoo hoo, Disney, where did you get the idea for Mickey Mouse? Or Cindarella? Or Snow White?
If you can watch it without dropping your litigation against YouTube, Viacom, you need to see a doctor right away. Seriously. I hope YouTube lawyers play it for the judge if you insist on going to trial.
Watch the part about the song that ended up being professionally released. It made the company some money. Cluestick: there is more than one business model, for those who can get with the new. Sooner or later, your shareholders will be furious with you if you don't course-correct and modernize. Yes. They will. Eventually, your shareholders will be YouTubers, you know. And you'll be what media used to be.
Sunday August 03, 2008
14:28
The End of the Patry Copyright Blog
» ‎ GrokLaw

William Patry has shuttered his blog, The Patry Copyright Blog. The archives are gone too. He tells why in a final post. It's a tragedy, nothing less.
No, no one at Google made him do it. He did it for a couple of reasons, both of which resonate with me, and I think they are important to highlight. I must warn you, it's a bit depressing. Here are the reasons:
1. The Inability or Refusal to Accept the Blog for What it is: A Personal Blog
2. The Current State of Copyright Law is too depressing
But it's in the details that the story is told.
07:15
The SCO Litigation - From Soup to Nuts
» ‎ GrokLaw

We have a new permanent page, SCO Litigation - From Soup to Nuts a table showing the main events in all the SCO and SCO-related litigation, thanks to Erwan's creativity. Our hope is that it will help you to keep track of this very complex saga. Now that the SCO v. Novell trial is over, we could be seeing some action in the other cases, and this should help you to recall where they left off.
If you see any mistakes or feel we should add anything to the table, sing out, will you? We've been working on refining it behind the scenes, and we've tried to incorporate corrections and suggestions. But now it's ready for prime time. Thanks, everyone. I'll post the table here also, to make it easier for you to work on any improvements.
Friday August 01, 2008
06:47
The Victor Raisys Back Story
» ‎ GrokLaw

Do you, by any chance, remember the name Victor Raisys? He was a technology analyst at Soundview Technology Group, who predicted difficulties for Linux when the SCO litigation began in 2003. Here's an example:
SCO's suit has "introduced a lot of confusion and uncertainty into the Linux market, which could ... dampen some of the future growth," Victor Raisys, a Soundview Technology Group analyst, told the Raleigh News & Observer. "The SCO lawsuit raises thorny intellectual property issues, and, analysts say, poses the potential for more court battles as other companies assert rights to some of the communal code," the newspaper reported.
Guess where he worked *before* the stint at Soundview? At Microsoft, and not only that, his job was to keep an eye on Linux for Microsoft, according to Dave Winer's 1999 account:
Last week, talking with Victor Raisys, Microsoft's guy watching Linux, a heated conversation -- they were playing the "There have always been a lot of Unixes" tape for me, and I said emphatically, Linux is not Unix....
At the end of the Microsoft conversation they asked what I would do about Linux if I called the shots at Microsoft.
He's listed that same year as one of Microsoft's "Linux 10", "a team at Redmond tasked with the assignment of studying the Linux phenomena and trying to decipher a way to stop it." Is that not a little odd to you?
Wednesday July 30, 2008
20:57
SCO and Novell Ask for More Time to Haggle About Final Judgment or Not, Interest Amount
» ‎ GrokLaw

SCO and Novell have jointly filed an intriguing document, Joint Motion for Extension Regarding Deadlines for Proposed Final Judgment and Pre-Judgment Interest Submission [PDF], and we find out what's been going on since the trial ended early in May.
SCO wants the Utah District Court's July 16th order to be a final judgment, presumably so it can appeal, as they just told their customers and partners they intend to do shortly. And the Order instructed Novell to file within fifteen days a brief telling the court what Novell seeks in the way of prejudgment interest and also the final judgment "consistent with these Findings of Fact, Conclusions of Law, and Order, the courts's August 10, 2007 Memorandum Decision and Order, and the parties' stipulations with respect to the disposition of certain causes of action." Novell believes it's inappropriate at this time to enter a final judgment. Here's why:
Novell has informed SCO that it believes entry of Final Judgment is inappropriate given the pendency of claims subject to an arbitration-related stay and given the Bankruptcy Court's reservation of issues pertaining to the entry of a constructive trues.
Novell is saying the whole story isn't decided yet, until there is a decision on the trust and also until there is word from the arbitration in Switzerland, which is currently stayed [PDF] by the Bankruptcy Court in Delaware.
SCO's position is that it has some "material related to that resolution" which it expects to be able to turn over to Novell within ten days, whatever that means. Maybe they're sorry now they got the Swiss arbitration stayed. It would be ironic indeed if it delayed their appeal.
They are also haggling over the amount of pre-judgment interest, but the reason they are haggling is because they hope to reach a stipulation on it. It's always better to work things out, if you can. It's a lot cheaper. So they jointly ask for more time, until August 22, to try to resolve all these issues. I don't doubt the motion will be approved, since they both want it. It's been referred to Magistrate Judge Brooke Wells. I know. It's just like the good old days.
13:09
SCO Tells Customers and Partners It Will Appeal Shortly
» ‎ GrokLaw

I'm sure you could write it yourself, knowing SCO as we do by now, but SCO's Jeff Hunsaker has sent a letter to "SCO Customers and Partners", letting them know that SCO will be filing an appeal shortly. From the wording, I'd say they intend to appeal both rulings, the August 10th and the July 16th rulings.
It goes on quite a while about how Novell didn't get as much in court as it originally asked for, of course, and how SCO was ruled to have all rights to OpenServer and UnixWare, something that Novell never challenged, and then it states that Judge Dale Kimball indicated that the ruling was a final ruling and hence can be appealed. So that is what they say they will be doing soon.
Interestingly, the letter also says that they filed for bankruptcy and "have been working on a plan with the bankruptcy court to continue in this protection mode until the court ruling regarding Novell's claims was finalized and SCO could have a financial plan for moving forward. Part of this plan includes the potential investment from an outside group that could help lead us out of Chapter 11 and create a path for future business." I take that as an admission that the delays in bankruptcy were planned and that the strategy was to stay there until after Utah ruled. Perhaps that would explain the strange and clearly unworkable "plans" SCO filed with bankruptcy court.
Tuesday July 29, 2008
15:49
Is Open Solaris in Hot Water? -- No, I Don't Think So
» ‎ GrokLaw

I've been seeing articles implying that Sun may have trouble, now that it has been determined that the Unix copyrights belong to Novell. Here's one example, Steven J. Vaughan-Nichols' "Is OpenSolaris in hot water?" -- where a number of interviewees opine more or less yes. I disagree, and I'll show you why I disagree.
In Judge Dale Kimball's July 16, 2008 Order, he explained the terms of the agreement between Sun and SCO in 2003, the agreement that gave Sun the right to open source Solaris. There is a detail in the Order that some may not have noticed:
Section 10 of the 2003 Sun Agreement also sets forth SCO's obligation to indemnify Sun for any claim brought against Sun asserting that the Section 4 licensed technology infringes the rights of any third parties. Section 10 further provides that if the intellectual property rights in the technology become the subject of a claim of infringement, SCO shall ensure that Sun has the right to continue to use the technology or replace the technology to make it non-infringing. The provision has not been implicated or applied.
That tells me that Sun is not in any trouble. If anyone is in trouble, should Novell decide to do anything about this, which I doubt, it's SCO. The agreement included the indemnification of Sun, so that if anyone sues Sun, SCO has to step in and take the arrow.
Which is why I doubt Novell would do anything about it, since SCO is currently more or less flat broke, but we'll have to wait and see on that. If someday SCO's prince does come to save her with his wallet, it might change my analysis of what Novell may choose to do. But I can't see any way Sun's Open Solaris is in any hot water under any scenario that I can imagine. Angry as I am at Sun's old management for doing this deal and then keeping mum about it, while the Linux community suffered needlessly, the fact is, as far as I understand Judge Kimball's words, they tell me Sun is indemnified.
And if you want to know why I don't want OpenSolaris to be in hot water, read this article about Microsoft's plan to lock in cloud computing. What I'd like to see to create a FOSS alternative to lock-in cloud computing would be Linux GPL3 + Java GPL3 + Solaris GPL3.
Monday July 28, 2008
04:55
"PATCH: ELF registry now at Caldera" in 2002 and LKP and GNU Tools
» ‎ GrokLaw

Well, well. What have we here?
It's a June 5, 2002 message posted by Lars Brinkhoff with that very subject line: "PATCH: ELF registry now at Caldera" in the mail archive of the binutils@sources.redhat.com mailing list for the GNU binutils project. It's in answer to a message from Hans-Peter Nilsson, saying that he couldn't figure out how to "get in touch with ELF people".
Brinkhoff shares an email he received from Dave Prosser at Caldera, after he wrote to registry@caldera.com. I believe it's more evidence that when Caldera distributed binutils in OpenLinux and in other products, it was not by mistake or without knowledge of what was in there. And they knew it was and is li