[NCLUG] SCO full of more crap

[jbass at dmsd.com]

"J. Paul Reed" <preed at sigkill.com> writes:
> "Under SCO's theory, if any code created by a Unix licensee ever touches
> Unix, SCO owns that code from then on, and can deny its creator the right
> to make use of it for any other purpose.

Actually SCO's theory, based on long standing legal theory of
what does, and does not, comprise a "derivative work", is that if
it was significantly developed inside the UNIX source framework
then it is a derived work.

Both IBM and Microsoft (as well as any other major vendor) would
use the same theory if a partner became a competitor over night
with the explict goal of destroying their company using IP shared
during the partnership. I would not be suprised if there are not
existing cases demonstrating this as already having happened.

> SCO's legal theory fails, because they ignore the fact that if a work
> doesn't contain some portion of SCO's copyrighted code, it is not a derived
> work.

A work doesn't need to contain a single line of the original work to be
consider a derived work.  Copyright Section 101 clearly says:

        "A ''derivative work'' is a work based upon one or more preexisting
        works, such as a translation, musical arrangement, dramatization,
        fictionalization, motion picture version, sound recording, art
        reproduction, abridgment, condensation, or any other form in which
        a work may be recast, transformed, or adapted. A work consisting of
        editorial revisions, annotations, elaborations, or other modifications
        which, as a whole, represent an original work of authorship, is a
        ''derivative work''.

This says nothing about having to have part of the original text
incorporated in the derivative.

Just as a sequel to a movie, which is a completely new story in itself
from the work it is based on, is also derived in part from the original,
even if every line of the sequel is unique from the original. (Refer
to the prior references regarding authors fan works).

The process of developing, porting, maintaining 3rd party code inside
a UNIX framework opens the door for a possible claim that the resulting
changes and additions to the work may meet the requirement of "a work
based upon one or more preexisting works," without changing the status
of any prior development that precedes the co-mingling.

> This is especially glaring on slide 20, in which SCO claims ownership
> of JFS, IBM's Journaling File System. The version of JFS used in Linux was
> originally developed for the OS/2 operating system, and was later ported to
> both Unix System V and Linux.

If it can be proven that the two decade old code from OS/2 was what was
ported to Linux, then clearly SCO has no derivative claim to JFS. If
it can be shown that in the two decades since JFS was ported to AIX/UNIX
that IBM made significant changes to JFS to improve the products integration
into UNIX the those changes made with detailed knowledge of the UNIX
framework become derivatives.

> SCO's claims fail in a similar manner for the
> other products they mention: RCU or Read Copy Update, software that keeps
> processors in a multi-processor system from interfering with each other,
> was developed by Sequent, a company later purchased by IBM. Sequent
> developed RCU under Dynix, a Unix-derived operating system.

Dynix was substantially AT&T UNIX ported to Sequent hardware, with various
modifications and enhancements for that hardware. All code developed and
modified inside that UNIX framework, including the enhancements of RCU
may well be rightfully deemed as derivative works of AT&T UNIX.

> They later
> removed RCU from Dynix - separating it from any code owned by SCO - and
> added it to Linux.

And failed to re-engineer what was likely a derivative work, using a clean
room approach that would legally and properly create a non-derivate work.

> Similarly, SGI's XFS, the eXtent FileSystem, was
> separated from IRIX, a Unix-derived operating system, and ported to Linux.

IRIX is substantially AT&T UNIX ported to SGI MIPS hardware, with various
modifications and enhancements for that hardware. All code developed and
modified inside that UNIX framework, including the development of enhanced
UNIX filesystems, such as XFS, form a derivative work of the UNIX system.

> SCO's contention is that copyrighted software can never be separated, that
> any code created by a Unix licensee that ever touches SCO Unix or is even
> loosely based on Unix is entirely SCO's from that moment on, and can never
> be used for another purpose by its creator without authorization from SCO.
> SCO's contention goes against any reasonable understanding of the
> boundaries of intellectual property. It's unlikely that it would survive a
> court room."

SCO's contention is that existing copyright law offers only one remedy
for removing "derivative" status from a work .... complete reimplementation
in a clean room environment such that the resulting work completely avoids
being tainted by SCO's IP.

And in fact, other copyright cases have upheld that a derivative, of a
derivative, is just what the name implies ... still a derivative. If
a new work free of other IP is required, then a new work must be created.
Plain and simple, except that with money to pay lawyers everything can
be lititgated to death.

John