Where to for the little people [Was: Re: [NTLUG:Discuss] foundthis on SCO vs Linux]

[Tom Adelstein]

David Brown <frag at phrenetictheory.org> wrote:

>Darin W. Smith wrote:
>
>> On Thu, 24 Jul 2003 09:10:06 -0500, Tom Adelstein 
>> <adelste at netscape.net> wrote:
>>
>>> This is not a matter of whether SCOis innocent until proven 
>>> otherwise. They have the burden of proof. I don't believe they have 
>>> the goods. Therefore, I challenge them.
>>>
>>> I don't understand how discussing the future of Linux is off topic. 
>>> Can someone enlighten me?
>>
>>
>> I think discussing the future of Linux is entirely ON topic.
>>
>> You are absolutely correct, IMO, that the burden of proof lies on 
>> SCO.  What I think would be the most productive thing to do, legally, 
>> is to force them to reveal, clearly and openly, what code they 
>> contest.  As it is, one can only see particular examples they have 
>> chosen and only if you have agreed to a rather offensive NDA.
>>
>> They may be only suing IBM (right now), but they should allow 
>> "discovery" by all involved parties--i.e., anyone who has anything to 
>> do with Linux kernel development.  As it is, they are (IMO) attempting 
>> to hold the entire Linux (and open-source in general) market for 
>> ransom.  I believe the word for that is "extortion."
>>
>> \Ex*tor"tion\, n. [F. extorsion.] 1. The act of extorting; the act or 
>> practice of wresting anything from a person by force, by threats, or 
>> by any undue exercise of power; undue exaction; overcharge.
>>       ^^^^^^^^^^  ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
>>
>> 2. (Law) The offense committed by an officer who corruptly claims and 
>> takes, as his fee, money, or other thing of value, that is not due, or 
>> more than is due, or before it is due. --Abbott.
>>       ^^^^^^^^^^^^^^^                       ^^^^^^^^^^^^^^^^^^^
>>
>> 3. That which is extorted or exacted by force.
>
>
>The difference between criminal law and civil law is that there isn't no 
>"innocent until proven guilty" in civil law.  I am unclear on how this 
>case would be proceeded upon as (I believe) IP infringements are 
>consider under criminal law which would mean that would have to be 
>proven beyond a reasonable doubt.  Which I don't think SCO can do 
>considering thier claim is based on "derivative work" definded by U.S. 
>Copyright Act (17 U.S.C. 101, et. seq.).
>
>As defined by U.S. Copyright Act (17 U.S.C. 101, et. seq.)
>
>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?.
>
>SCO themselves claim IBM distributed "derivative work" that IBM 
>themselves did based from SCO's System V source to the extent of even 
>including actual source from System V into Linux.  Althought as definded 
>by the Copyright Act noted, it MUST represent System V as a "WHOLE".   
>SMP, RCU, and JFS don't represent System V as a whole.  At best they 
>could be considered  additions included into System V code.  It would be 
>like considering the seat belt derivative work of the a wheel.
>
>This brings up (what I consider) the whole reason why SCO forced anyone 
>that wanted to examine the offending code to sign an NDA even thought an 
>NDA wouldn't "protect" SCO's IP at all because the offending code they 
>are talking about is already on 10 million+ CDs floating around the 
>world.   Their "proof" is paper thin and unsubstantiated.  IMO, this 
>whole debacle was a ploy to get IBM to buyout SCO for at least twice 
>SCO's current value. (which is far less than a billion dollars)  As for 
>SCO's attempt to licenses Unixware to Linux users I side with Darin.  
>Scare tactics are illegal and should fall under extortion law.  
>Especially considering they wouldn't substantiate their claims.   They 
>are probably doing this to help pay their lawyers for the nasty battle 
>they are about to embark on.
>
>I wouldn't worry to much about it.  What IBM does will determine the 
>outcome of this, and IBM is a big boy and can handle themselves.  In the 
>end this probably will have little effect on Linux users in the 
>corporate or home user enviroment.  One of the executive where I work is 
>a large holder of SCO stock, and he noted that he isn't interested in 
>licensing Unixware to "protect" the company.   He doesn't believe their 
>case holds water; he is just in it for the buck since their stock keeps 
>going up.
>
>sorry about the rambling.  :(
>
>David
>

I was hoping to avoid rehashes of opinions on this topic. I don't understand how this furthers the action. Maybe someone got an ah-ha out of it. I hope so.

>From what I understand, you seem that have said that in civil litigation no burden of proof exists on either party. So, we just satnd in front of a judge or a jury and say it's my word against his? Which one of us looks more credible is that the point?

I don't recall mentioning the IBM lawsuit. We're discussing a strategy for getting a restraining order on SCO starting with the filing of a TRO and stopping their ad hoc press conferences.

Do you have something to say about that?

If you're saying, sit back and do nothing, we've already heard that one. Anything new?




















>
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-- 
Tom Adelstein


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