[NCLUG] What a winner of a case .... understanding copyright

[jbass at dmsd.com]

Just finished reading the latest SCO filing requesting an injunction
against IBM against shipping AIX and the immediate distruction of all
AIX materials.

What a landmine SCO has dropped on IBM, who should have known better.
Three claims are going to seriously impair IBM's ability to defend
this if the leaks of SCO allegations are correct:

	1) strong public statements regarding moving AIX/UNIX
	   functionality into Linux to bury UNIX forever which
	   shows clear intent to damage SCO, and the related
	   contract terms between SCO and IBM.

	2) a significant number of identifiable code fragments

	3) complete lack of clean-room/dirty-room not only at IBM
	   but also at nearly every shop with both UNIX and Linux.

Who would have thought a small IP legal team from Utah would have
the balls! But they have 30 years of solid case work to cite,
including some that have been tested to State and Federal Circuit
Courts. Plus statements by various management and developers that
are very damning to support claims of intent to harm UNIX and SCO.

All in all, it appears that IBM (and SGI, and HP, and ...) in their
rush to extend Linux to run on large machines may well have taken
the short cuts in replacing genetic UNIX variants with Linux that
SCO alleges in their complaint, leaving lots of room for litigation.

The solution for the generic Linux end user lies in Stallman's own
words:

	"I think that freedom is more important than mere technical
	advance,I would always choose a less advanced free program
	rather than a more advanced nonfree program, because I won't
	give up my freedom for something like that. My rule is, if
	I can't share it with you, I won't take it." 

So at this point SCO is claiming, and probably rightfully so, that
2.4 and later are tainted ... with the implication that 2.2 is
probably not.

For those that do not understand the clean-room/dirty-room issues
regarding reverse engineering and re-engineering of software products
you can get a good overview here (there are hundreds of sources):

	http://www.ardi.com/reveng.php

	http://216.239.53.104/search?q=cache:10k5hxq4VJ4J:www.bytelaw.biz/FAQs/Clean%2520Room%2520Proceedures.doc+copyright+reverse+engineering+clean+room&hl=en&ie=UTF-8

	http://www.computerworld.com/softwaretopics/software/appdev/story/0,10801,65532,00.html

	http://subscript.bna.com/SAMPLES/ctl.nsf/0/6e5603744689eaee85256cef007983f0?OpenDocument

For those that need better detail see:

	Software & Intellectual Property Protection, by Bernard A. Galler
	(Westport, CT: Greenwood Publishing Group (Quorum Books), 1995)

for a whole book on the subject.

There are a lot of clean-room projects to point at, including HP's
clean-room developed JAVA platform announced back in March 1998,
which show this as well understood and accepted practice.

	http://www.wired.com/news/technology/0,1282,11094,00.html

Even IBM has been here on the other side as Compaq and Pheonix
successfully clean-room implemented BIOS's for clone PC's.

There are a long string of court cases establishing what is protected,
how to compare programs, and what must be done by firms re-implementing
competitive software (as you might guess they are related):

	Gates Rubber Co. v. Bando Chemical Industries, Ltd.,
		9F.3d 823 (10th Cir. 1993)

	Engineering Dynamics, Inc. v. Structural Software, Inc.,
		26 F.3d 1335 (5th Cir. 1994)

	Computer Associates, Inc. v. Altai, Inc., 982 F.2d 693
		(2d Cir. 1992)

	Manufacturers Technologies, Inc. v. Cams, Inc.,
		706 F. Supp. 984, 994 (D. Conn. 1989)

	Mitek Holdings Inc. v. Arce Engineering Co., 89 F.3d 1548
		(11th Cir. 1996)

	Sega Enters. Ltd. v.  Accolade, Inc.,
		977 F.2d 1510, 1520 (9th Cir. 1993)

	Atari Games Corp. and Tengen, Inc., Plaintiffs-Appellants,
	v. Nintendo Of America Inc. and Nintendo CO., LTD.,  91-1293

Since SCO is pressing this issue, they clearly understand what has
failed in nearly every major Linux kernel development shop - all are
using programmers which have extensive prior contact with genetic UNIX
AT&T/SCO source. I expect that some of the local paid Linux kernel
programmers also have strong HP/UX experience. Many of us that are
not paid, also have licensed "free" source for Solaris SVR4, making
it difficult for us to claim to be free.

I (and hundreds of other consultants) have done both clean-room and
dirty-room reverse engineering (as well as having paid other contractors
for dirty-room services) for reverse engineering contracts for various
clients. I've also turned down some work since the changes in the DMCA
copyright law, for obvious reasons.