And They Call Linus Careless

By Pamela Jones

June 18, 2003

SCO's Amended Complaint attacks Linus for allegedly being careless, allowing code in without checking for IP problems first. This is worse than laughable. There is no company in the world, no matter how large or how rich, that can give you a guarantee their code doesn't violate someone's trademark, copyright or patent rights, not that I have ever heard of.

I'd be most interested to hear what procedures Caldera had in place regarding code they incorporated into their distribution of Linux. Did they certify to their users that there was no possibility that there were any violations of anyone's patents, copyrights, or trademarks?

That is more than unlikely, because it'd be unreasonably Herculean to do the kind of investigation that would be required to find out, and even then, how could any company really be sure? Aside from the magnitude of the task, there is the fact that everyone who files tries to make it as hard as possible for others to find out what they have. Even when filing for copyright, when it comes to software, companies don't deposit the entire program on paper, but rather they may print out one page on paper and the rest is deposited on disks, for that very reason.

How about UNIX? Do they make such guarantees, so as to demonstrate to us the superiority of proprietary, comporate ownership? Let's take a look at SCO's Exhibit A. Literally.

When IBM licensed its rights to UNIX from AT&T, back in 1985, Clause 7.03 of the contract, which is attached to SCO's Complaint as Exhibit A, reads like this:

"AT&T warrants that it is empowered to grant the rights granted hereunder. AT&T makes no other representations or warranties, expressly or impliedly. By way of example but not of limitation, AT&T makes no representations or warranties of merchantability or fitness for any particular purpose, or that the use of any SOFTWARE PRODUCT will not infringe any patent, copyright or trademark. AT&T shall not be held to any liability with respect to any claim by LICENSEE, or a third party on account of, or arising from, the use of any SOFTWARE PRODUCT." [emphasis added]

Did AT&T put that in there because they knew they were careless about IP? Hardly. The inserted it because everyone knows there is no reasonable way to make a guarantee regarding IP cleanness in software. To try to imply that Linus is somehow unique in this is ludicrous. Here we see that proprietary UNIX, then owned by the huge entity AT&T, with all the lawyers they wanted to have available to them, made no such guarantee either.

That isn't to say that there is no effort, no process to screen out patented or other proprietary code. A message on Yahoo! Messageboard for SCOx points this out and provides a real-life example:

"SCO is mouthing off about how Linux can't police IP issues. They are also claiming they own trade secret rights to Read, Copy, Update (RCU) technology, and that IBM misappropriated these rights by passing RCU to Linux.

"The following kernel mailing list archives ought to refute all of those claims:

"The first email finds kernel maintainer Andrea Arcangeli from SuSE REJECTING IBM's submission of RCU to linux because the technology is covered by US Patent #05442758, as pointed out by Alan Cox or Red Hat.

"The second is IBM employee Dipankar Sarma stating that IBM owns this patent, having purchased the inventor Sequent, and that IBM legal has reviewed it and approved its release under GPL.

"The third is confirmation from Andrea Arcangeli that an IBM patent grant letter has been sent to both Linus and him.

"OK, SCO dweebs. How do you have a trade secret on something that is patented by someone else? First of all, patenting requires disclosure. Second, a patent grants exclusive rights that means your use of the technology must be authorized by them. Third, it's very clear that the kernel maintainers are exercising proper controls to assure IP is properly licenced."

The poster even provides the url to the patent [ ].

And speaking of careless, SCO is still allowing downloads of OpenLinux 3.1.1, despite their public claims to have stopped, back on May 12. They were told, in an article [ ] in Linux Journal at the end of May that it was still available; the German kernel coder who sent them a notice of copyright infringement last week told them it was still available. And today, I am publicly telling them that it is still available right here [ ]. I'm not suggesting you get it, by the way, just telling you where you can verify it. There is quite a bit available besides that, as you can see going down this list [ ]. I see scolinux, and clicking on that I see ia64. Hmm. Isn't Unixware what they call System V nowadays? Isn't that the super secret code? Updates and patches for it are available to the public on that page. I don't believe you can patch a trade secret. It's a Humpty Dumpty kind of thing. Someone with more tech skills than I would have to evaluate all this, but the point is, SCO, by continuing to make the Linux kernel available, remains in violation of the terms of the GPL, and after all the notices, is it willful or careless or what? That puts them in a sticky situation.

You are not allowed to distribute the kernel under any other license than the GPL. If you do not accept the GPL, you lose all rights under the GPL to distribute the kernel at all. If you continue, you are in violation of copyright laws. That's what the coder was letting them know. As of today, June 18, 2003, the violation continues. I am a witness.

I wonder if any of the hundreds of kernel contributors has yet talked to a lawyer about sending a
DMCA [ ] notice and take down letter. It's a logical next step. Copyright infringement is against the law. Talk about anti-FUD.

11:10:10 PM

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