[TUHS] IANAL. Kimball has ruled

Pepe pepe at naleco.com
Fri Jul 18 05:55:14 AEST 2008

> From: "Jose R. Valverde" <jrvalverde at cnb.csic.es>
> 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.

You guess Sun was worried about non-ATT code in SVRX? No quite. The SVRX
code in Solaris (if any; and certainly there is plenty) is certainly 100%
ATT-derived, and any non-ATT code in the SVRX code that The SCO Group
passed on to Sun had (by a mere matter of time) to be added to SVRX
after ATT relinquished the original SVRX code and quite after Solaris
branched out of the UNIX System V Release 4, and therefore any non-ATT
(or non-ATT-licenseable) code inside The SCO Group's SVRX certainly is
not inside Solaris, so no worries there.

You forget the The SCO Group was fully engaged in a total FUD campaign,
whose ultimate goal was to cut off Linux support in the Enterprise via
fear, uncertainty and doubt, and whose collateral goal was to make
plenty of money selling bogus Linux licenses and suing everybody in
sight (IBM and The SCO Group's own customers, of course).

Sun needed desperately to find a way to stop losing money, and that
meant making themselves again desirable to the IT market. Sun mayor
rivals were (and are) Microsoft and Linux. Specially Linux, since more
Sun machines are being replaced by Linux than by Windows. So the Sun
strategy was two-fold: release an "opensource" Unix to "steal" the
grassroots support away from Linux, and give money to The SCO Group
so they could keep afloat their FUD campaign against Linux in the
Enterprise. If they could achieve these two goals with one swift move,
much better; and they did: the gave money to The SCO Group to buy a
bogus license to opensource Solaris.

> 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

Your ingenuity here is shocking.

> 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.

Ridiculous. With Solaris the Enterprise has a growth path to big iron.
With UnixWare the Enterprise has a "growth" path from the PC to a bigger

> 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 
> responsibility.

So, what two "opens source" OSes does The SCO Group have? "Open"-Server
and "Open"-Unix (aka Unixware)? Amazing!

> BTW, nobody seems to have complained about portions of SVRX contributed
> code being in opensolaris, so maybe nobody cared anyway

Nobody cares about OpenSolaris. If you are going to go with Solaris,
open or not, you are going to be paying much more for year-on-year
support to the vendor than the Solaris license costs, so whether it is
open o not is moot for the Enterprise.

> In any case, we
> now know SCO has assumed the defense of OpenSolaris, which is a great
> thing to know.

I do not see it like that at all. The SCO Group has afforded SUN
indemnification in the eventual case the license they sold to them gets
shot, as it is going to happen unless Novell gets its money, either from
the now-bankrupt The SCO Group or from SUN itself (second payment for
the same thing, funny deal there!).

The question here is: the indemnification The SCO Group offered SUN
weights less than smoke: What indemnification can you get from a bankrupt
company? None, that is the answer.

> 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?

That interpretation is much closer to the truth. Except they didn't sell
"their IP", as The SCO Group had none of UNIX copyrights, none of UNIX
IP, they just bought from Novell the UNIX distribution business, but
not the UNIX IP.

> 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.

Caldera/The SCO Group did no have just title to change the license on the
intellectual property they did not own and which they were not allowed to
re-license with different terms under the "Assets Purchase Agreement"
signed between Caldera and Novell. Therefore, any and all relicensing
done by Caldera of ancient or modern UNIX code is void and null. Unless
Novell comes after the fact and endorses such open-sourcing. Absent Novell
action, The SCO Group actions changing the UNIX license are void.

Novell action in that sense has not happened up to the day of today.

> From: "Gregg C Levine" <hansolofalcon at worldnet.att.net>
> It would not have impacted any version of Solaris, including the Open one.
> And why you are asking? I am glad you asked. It seems that according to the
> good people at the Sun offices here in the City, that by the time version 9
> was released, that the code base was completely rewritten, and contains
> absolutely nothing from BSD, and most certainly nothing from the original
> creators of UNIX.

That's not saying much. The original creators of UNIX wrote it in assembly
for the PDP-11. Nothing of that is in Solaris, that's true. And BSD is
open-source and legally close-able anytime, so no argument there either.
Now, if "the good people at the Sun offices" are trying to imply there
in no Unix System V code in Solaris, they are lying. Period.

> From: Boyd Lynn Gerber <gerberb at zenez.com>
> Caldera/SCO was trying to get everything opensourced.  They released 
> OpenUNIX 8.0 which was UnixWare 7.1.2.

What? Care to show proof? What do you mean by the mention of "OpenUNIX"
in the same paragraph where you say "SCO was trying to get everything
opensourced"? That "OpenUNIX" is proof of the "opensourcing" done at
The SCO Group?


> They had reached an agreement with 
> every one and were about to release everything a the big expo in Jan/Feb 
> east cost.  It was to be a joint IBM/SCO announcement, when IBM suddenly 
> decided against it and were addamanly now doing everything to stop it.  

Those are not verifiable facts. Rumors and hearsay make no history.

> I am grateful to SCO for their attempt to make UnixWare/OpenUNIX 
> opensource.  I just wish it had succedded.

What attempts? Vaporware is nothing to be grateful about.

pepe at naleco.com

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