[TUHS] IANAL. Kimball has ruled

Jose R. Valverde jrvalverde at cnb.csic.es
Thu Jul 17 18:18:01 AEST 2008

Following up to recent questions about whether OpenSolaris might be jeopardized
if SCO didn't have the rights to provide the license, I see that judge Kimball
has ruled on the case, and in discussing its ruling, he mentions the agreement
between SCO and Sun.

Particularly he mentions:

> Section 10 of the 2003 Sun Agreement also sets forth SCO's obligation 
> to indemnify Sun for any claim brought against Sun asserting that the 
> Section 4 licensed technology infringes the rights of any third parties.
> Section 10 further provides that if the intellectual property rights 
> in the technology become the subject of a claim of infringement, SCO 
> shall ensure that Sun has the right to continue to use the technology 
> or replace the technology to make it non-infringing. The provision has 
> not been implicated or applied.

I have to change my opinion on SCO to consider them now UNIX zealots. As
I read it, I guess Sun was worried by possibly non-ATT code in SVRX, and
may be by Novell's assertions, so they shielded themselves: if I'm not
wrong that means OpenSolaris is safe and the responsibility for that relies
totally on SCO.

SCO thus was willing to take any risks regarding third parties with respect
to opening up SVRX derived Solaris. That was very bold and valiant (though
seeminglymay be wrong) from them. Why they decided to allow open sourcing 
via Sun instead of Unixware is their choice. I guess they thought it would 
play better for them to sell a 'closed' Unixware as an 'enhanced' or 'better
product' than open solaris. It also fits within Caldera's previous opening
other ancient UNIX.

My guess is they were for opening SVRX as a way to increase market share 
of UNIX against LINUX but preferred Sun to open _their_ version instead of
opening SCO's own. At the same time they must have thought that a combined
attack on Linux would drive most people off Linux towards opensource UNIX 
and that corporate interests would prefer SCO's closed Unixware to Sun's
open source solution in line with tradition.

But then comes the last sentence: the issue of opensolaris damage to the 
closedness of SVRX was not brought up at trial. May be it wasn't the time
and place, or may be Novell reasoned that it does not matter to them to
offer one open source system (linux) or other (solaris). I'd also guess
given Novell involvement in SuSE that they would have liked to open
SVRX all along but didn't dare to because of possible complains by
existing licensees (like IBM or HP) who might see their licenses as
oblivious, and -most probably- because it was never very clear whether
all code could be open or belonged to them (sort of like Linux going to
GPL3: it's difficult to identify all contributors and ask their permission).
Thus SCO move benefits them twice as now they have two open source OSes,
and should any contributor to SVRX code complain of the open sourcing
SCO would have to take the blame and has already assumed all 

BTW, nobody seems to have complained about portions of SVRX contributed
code being in opensolaris, so maybe nobody cared anyway, but it might 
also be that they were waiting to see the case unravel. In any case, we
now know SCO has assumed the defense of OpenSolaris, which is a great
thing to know.

My kudos to SCO. They were bolder than I thought. Even if -IMHO- their
strategy against Linux was misled, their willingness to support open
solaris deserves respect.

Or may be they didn't want to but needed so badly Sun's money to follow
their lawsuit against IBM that they were willing to sell their souls
(and IP) in the hope of a big win against IBM. Who knows?

One thing is certain, Caldera/SCO should be thanked for allowing opening
of so much ancient -and modern- UNIX source code. Their war against Linux
OTOH is another issue.


	These opinions are mine and only mine. Hey man, I saw them first!

			    José R. Valverde

	De nada sirve la Inteligencia Artificial cuando falta la Natural

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