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Darl McBride's 5 Reasons Why SCO Can *STILL* Win vs IBM

Darl McBride's 5 Reasons Why SCO Can *STILL* Win vs IBM

In an interview just conducted by eWeek, SCO Group supremo Darl McBride demonstrates his unswerving and continuing confidence in SCO's case.

The eWeek interviewer, Steven J. Vaughan-Nichols, didn't sound as confident in the arguments he heard as those making them, but that didn't stop McBride and Chris Sontag, senior vice president of the SCOsource division, from outlining at least five reasons why they still think SCO will prevail, in spite of the near-universal criticism the company receives from the Linux community.

Here they are. Draw your own conclusions.

1. "We never contributed our code to the GPL."

McBride: "The fact that we participated with Linux does not mean that we inadvertently contributed our code to the GPL. You can't contribute inadvertently to Linux. We feel we have a very strong position based on the GPL."


2. "If we did contribute code to the GPL...we didn't do so intentionally."

Sontag: "International copyright law does not allow for inadvertent assignments of copyrighted material; the copyright holder must make an explicit assignment, typically in writing, in a contract."


3. "The code IBM has put into Linux copies the sequence and organization of Unix code."

McBride: " A lot of code that you'll be seeing coming on in these copyright cases is not going to be line-by-line code. It will be more along the lines of nonliteral copying, which has more to do with infringement. This has more to do with sequence, organization, which is copyright-protectable. "


4. "System V and Linux have some identical implementations."

Sontag: "In Linux and System V, [dynamic shared libraries] are implemented in exactly the same way. They could have been done very differently and still accomplish the same thing."


5. "The source code underlying the ABI files is identical."

McBride: "When everything is said and done, when everything is on the table in the court case, there will be an argument when the Linux guys come in and say, 'Guys, the words are entirely different, how can you say that's a copyright violation?' But there are two parts to this. There are the words that are in the source code, and there's the music underneath. The actual code that drives these ABI files is structurally and sequentially the same. "

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Most Recent Comments
Thomas Frayne 04/07/04 10:24:03 AM EDT

SCOG's first few arguments claim that SCOG did not assign its copyrights. Right, but irrelvant. SCOG had a conditional permission to distribute collections based on GPL'd programs provided that SCOG accepted and abided by the terms of the GPL. When SCOG breached the GPL, it forfeited all rights under the GPL, including the right to keep copies of the collection. However, those receiving the collection are still licensed under the GPL, which also gives the recepient SCOG's permission to use and distribute SCOG's code in the distribution. SCOG cannot revoke this permission, and no court would revoke it for SCOG.

The points 3-5 require more detail to evaluate. SCOG is under court order to provide this detail, and the deadline is in 10 days. In particular, SCOG has to show that it owns the copyrights that it claims IBM is violating. IBM disputes that, and the Novell cases decisions expected during the next month will support IBM's position.

wtf 04/04/04 06:24:42 PM EDT

Anyone who thinks they can increase the earnings of a company solely though LAWSUITS has to be wrong in the head

Smart in a certain way, but wrong in the head

Aaron Klemm 04/04/04 05:04:48 AM EDT

Aren't #3 and #5 the same? Looks like it to me.

David Blomstrom 04/04/04 12:45:03 AM EST

Obviously, Microsoft and SCO are getting a free ride in the Corporate States of America. I suspect deliverance will ultimately come from the international community.

In the meantime, we need more people taking a stand here on the home front. Check out http://www.edrevolt.org/ and get involved!

JWillis 04/03/04 09:06:10 PM EST

I would like to comment on McBride's last reason. Im sure everyone has been to the grocery store. When you go to the cereal aisle you may see Apple Cinnamon Cherrios and you see an imitator Apple Cinnamon Tasteeios. The point to this little story is that just because something does the same thing does not mean you own it. As long as the code (or the ingredients in this scenario) are different then the end product itself is different.

rbeck 04/03/04 07:35:30 PM EST

Sontag confuses licensing copyrighted work under the GPL with assignment of copyrights to the Free Software Foundation. The GPL is a standardized form of authorization (license) of copyright permissions given from the owner to another person, and anyone may use it to govern code they own. IBM's point is that they own the copyrights to their contributions AND they are licensed under the GPL.

br3n 04/03/04 12:26:21 PM EST

I don't understand why people feel that scox is misunderstanding the GPL,they aren't.They understand it perfectly and have designed a scheme to try to get around it to make money as greedy and corruptly as they can.It is sad that this has gone on this long.This has been an orchestrated plan from day 1.We can only hope that in the end jail time is part of the end result,as a lesson and warning for others to not try to twist the GPL.
We have gone from a million lines of direct line by line copying to structure?SEC why aren't you on this?

br3n

brian 04/03/04 10:13:43 AM EST

SCO were NEVER ahead of Red Hat either as a Unix vendor
or a Linux one. McBride feels that by litigating this customers
will flock to SCO. I for one would unplug and get rid of
my computer first.

OddThought 04/03/04 10:12:18 AM EST

Maybe SCO's plan is to let the stock collapse and then file chapter 11? This
will go towards sympathy. The point here is not to win; they know that their
claims are unwinnable. The point is to cause FUD. Besides, if the company
conveniently is dissolved before trial, can the case even have resolution? The
suing corporation no longer legally exists at that point.

GLJason 04/03/04 10:11:11 AM EST

I think it's amazing how McBride keeps saying they must own all rights to UNIX
and anything to do with it because they paid hundreds of millions of dollars to
Novell. It's amazing that in a few years that hundred million dollar investment
became worth $5 billion in a suit against one company (IBM), and billions
more if he actually got $699 for each install of Linux out there. The real
amazing thing is that they think they deserve all that money for an operating
system that they contributed very little to. If their Unix on Intel was
actually that great, why isn't everyone using it now?

SCOwatcher 04/03/04 10:09:31 AM EST

try reading this, a full transcript of Darl's interview with Dan Farber. McBride firmly believes that the result of the lawsuits will be that SCO will pass Red Hat once again.

erick99 04/03/04 08:57:29 AM EST

I went to Ameritrade and did some research on SCO. At the end of last year they had $64M in cash which is not very much money. They are a very small company (comparatively) in the IT world with not even 100M a year in revenues. They have three insiders that sold stock or excercised stock options to the tune of almost $300M in Feb/Mar of this year. I don't understand what would keep them afloat for more than a year. They have negative earnings-per-share and they have a estimated share price of $5 at the end of this year (currently at $9.50). SCO would be better served by having someone at the helm that had a real interest in technology. McBride is inarticulate, mean-spirited, and an opportunist. I wonder if SCO can stay in business long enough to see their various law suits to a conclusion.

Zurab 04/03/04 08:56:43 AM EST

He is trying to make it look like releasing software under GPL is the same as assigning copyrights, which of course it's not. If SCO originally owned copyrights, they still do. They haven't assigned copyrights to anyone. That's total FUD that average reader (read: investor/broker/etc.) will not catch right away, neither did the interviewer.

phoneyman 04/03/04 08:55:48 AM EST

Sontag has no clue what the GPL is, what copyright is, and what a license in general is.

SaywHAT?? 04/03/04 08:54:46 AM EST

So now Linux is Bad because it's Similar to UNIX.

Did Darl ever bother to explain under which portions of copyright law, exactly, it is legal or a civil infringement for Linux to be Similar to UNIX?

Just checking.

David Hume 04/03/04 08:53:13 AM EST

This is standard operating procedure in intellectual property litigation -- even if you have a good claim. First harvest the low hanging fruit. Build your war chest by first feasting on adversaries who won't put up a fight. Avoid the risk that you may not collect from weak players becaue you attacked a strong adversary too early, and received an adverse precedent (i.e., published) decision that the weaker players can benefit from and couldn't otherwise have obtained.

On the other hand, it is also the perfect strategy if you have a weak claim. Attack only weak adversaries who can't afford to defend themselves, or for whom the cost of defense would be greater the the cost of capitulation. There are companies who survive and prosper by asserting weak (cough) intellectual property claims and offer to settle for amounts less than their adversaries' cost of litigation. The key is to make sure that the claim is not so baseless that you expose yourself sanctions or a subsequent claim for malicious institution of a civil action.

Then again, SCO has already violated these rules by attacking IBM far too early in the game. Go figure.

Lost Cluster 04/03/04 08:52:09 AM EST

It seems to me that SCO is going after companies that are more likely to pay up than go to court to fight them, taking a bit of a path of least resistance. We don't know how many private license deals they did in the first quarter of 2004... they'll have to release the total revenues in a few months, but it's not out yet.

SCO might be making more deals than we know with companies less likely to fight back because they know they will lose the IBM fight... so they're profiting while they can.

Talinom 04/03/04 08:46:30 AM EST

What Sontag is saying here is that SCO inserted its code without the required notice assigning it to the GPL. This would mean that their code is not covered by the GPL (which is counter to their business model) and is still SCO's.

Space Life Form 04/03/04 08:44:05 AM EST

As McBride himself says: The truth will come out in the courtroom.

We can only hope

linux guy 04/03/04 08:42:07 AM EST

There are many in the Linux community like myself who could see what was going on and shorted SCO stock when it was in the high teens. Since then SCO stock has come tumbling down and has made us A LOT of money. This money came from people who directly supported the SCO scam by buying their stock. I am going to get extra enjoyment out of spending this cash. I have donated some of my winnings in the SCO lottery to various opensource causes including Groklaw and will do more of that in the future.

There are approximately 2.5m shares of SCO that have been sold short. That is 36% of total shares floating. This is huge. IBM in comparison has 0.8% of its floating shares short.

ljavelin 04/03/04 08:41:03 AM EST

I hope IBM's lawyers trounce what looks to be this SCO/Microsoft partnership.

And given the details that I know, it looks like IBM will succeed in showing that a SCO/Microsoft partnership is in fact a losing partnership.

bckrispi 04/03/04 08:39:31 AM EST

The travesty of this story isn't the Trial By Fire that Linux/OSS have had to endure and it isn't the FUD that's been generated and weathered. The sad fact, my friends, is that when all is said and done, Darl and his cronies will still have been made obscenely $rich$ by this little pump & dump scheme.