Ancient ‘Who owns Linux?’ case now has one foot very deep in the grave

The long legal battle over ownership of Linux is closer than ever to ending, after a panel of three judges ruled a claim against IBM and Red Hat isn’t valid, and that time has expired for further action. This story starts in 1998 when IBM decided the world needed a single version of UNIX capable of running on multiple processor …

[Groo The Wanderer - A Canuck]

The only ones making money here are the lawyers, thanks to stupid people willing to spend money on an utterly futile hope for a miracle win of money.

They'd have better luck playing Lotto 6/49 in Canada, or Power Ball in the US.

[thames]

SCO filed numerous "Linux Lawsuits", most of which had nothing to do wit Linux, but rather were for supposed minor license infractions for their own customers of proprietary Unix.

The Project Monterey situation was different from these. There were I believe two issues. One was the partnership termination. IBM pulled out of the partnership when the original SCO bailed out and sold it's Unix assets to Caldera (a Linux distributor who then renamed themselves SCO). IBM then exercised their "change of control" rights in the contract to pull out as well.

The other issue was the JSF file system. IBM developed this for AIX. IBM then developed a version of this for OS/2. They then open-sourced the OS/2 version and ported it to Linux. I don't think it ever saw much actual use on Linux however.

IBM also produced a version of JSF for Project Monterey. From what I understand though, it was not the same as the OS/2 and Linux version.

The claim of a connection between the two versions of JSF though was one of the bases of Caldera/SCO's claims against IBM, although they could never really explain why they thought they had any rights over IBM's software.

Their JSF claims didn't seem to go anywhere in court back when this all started, so I don't see why it would go anywhere now.

Of course their claims were constantly shifting, so who knows what they are claiming today. Their strategy all along seemed to be to create a big enough nuisance of themselves to have people decide it was cheaper to buy them off than to fight them in court. That strategy flopped when IBM, Novell, and various other companies decided to mop the floor with SCO as a point of principle rather than just buy them off.

Caldera's original business plan when buying SCO's Unix business (mainly Openserver) was to tap into SCO's established VAR network and have them sell Caldera Linux to existing clients. This sounded like a reasonable business strategy on paper, but Caldera failed to execute on it and the board of directors brought in new management to pursue pointless lawsuits as a business exit strategy. This seemed to pay off when Microsoft and Sun gave Caldera/SCO a big wedge of cash for reasons that nobody has been able to explain reasonably, but that money was what was used to finance the lawsuits.

When all the losing caught up with Caldera/SCO, they filed bankruptcy to avoid paying damages on the counter-suits, and carried on fighting using the money they were supposed to pay in damages to other people.

In the end of course the lawyers got everything and were the only ones to come out ahead.

[RM Myers]

"...decide it was cheaper to buy them off than to fight them in court"

Having worked for a large enterprise that took the position that they would never settle frivolous lawsuits just to avoid legal costs, I can see both sides. If you pay up and save money in the short term, you get a reputation with lawyers which just leads to more nuisance lawsuits. On the other side, I have also seen the costs for attorney fees to fight these lawsuits, and saying you won the suit rings fairly hollow when your attorney fees are huge and dwarf what you could have settled for.

[Pascal Monett]

Re: "attorney fees are huge and dwarf what you could have settled for"

Yeah, but if you settle, you're a pushover and inviting more lawsuits in the future.

Fight to the end and the message is clear : go away, it will be painful for both of us but you wont get a dime.

I subscribe to that point of view.

[Neil Barnes]

Re: "attorney fees are huge and dwarf what you could have settled for"

Henry IV, part II: The first thing we do, let’s kill all the lawyers...

[Doctor Syntax]

Re: "attorney fees are huge and dwarf what you could have settled for"

An approach which fails if you ever find yourself in court charged with something serious that you didn't do (all the more likely these days with facial misrecognition systems being deployed).

[PB90210]

Re: "attorney fees are huge and dwarf what you could have settled for"

Or in this case

https://en.wikipedia.org/wiki/Jarndyce_and_Jarndyce

[A Non e-mouse]

Re: "attorney fees are huge and dwarf what you could have settled for"

The first few cases will cost you a ton in lawyers fees. But slowly people realise you'll put up a fight so their costs will go up too changing the risk/reward balance.

[frankvw]

Re: "attorney fees are huge and dwarf what you could have settled for"

"Yeah, but if you settle, you're a pushover and inviting more lawsuits in the future."

It's worse than that. A settlement is generally perceived as an admission of guilt by the defending party. So the cost of reputation damage can easily exceed the cost of fighting it out in court.

[Benegesserict Cumbersomberbatch]

Re: "attorney fees are huge and dwarf what you could have settled for"

Yeah, and USians generally have a system where you pay your lawyer and your targetopponent has to pay theirs. Costs awards against unsuccessful litigants are the solution to that, but hey, it's unpopular with lawyers and who else cares?

[Chris 15]

to be blunt

This was Microsoft's play to keep the FUD going that they were trying to spread about Linux

[Doctor Syntax]

Re: to be blunt

I think it was even more successful in distracting SCO management. Openserver was a very good platform for small business systems and a step up to bigger servers - Sequent, AIX, HP-UX etc. if the business got bigger. If SCO had had the wit to cut prices and go for a mass market Windows might never have got into the server market and Linux might never have got to be more than the hobby system it started as.

[Eric 9001]

Re: to be blunt

It was mostly FUD about the GNU OS (with or without Linux - commercial offerings of GNU with proprietary Unix kernel's was available at the time), although of course they made sure to call it "Linux".

They knew very well, that if they named the GNU even once, on something that anyone actually reads, the funny joke would be made unstoppable.

[Groo The Wanderer - A Canuck]

Re: "...decide it was cheaper to buy them off than to fight them in court"

The problem is anyone who settles such a suit has just hung a big red "Sucker!" flag on their business, inviting more such lawsuits. Unless you're as scummy as those doing the suing, you always have to fight off the patent trolls and legal slime in the industry.

[Flocke Kroes]

Sometimes the lawyers do not win

IIRC David Boies of Boies Schiller Flexner committed BSF to litigate Caldera's claims for a percentage of the win plus expenses. It was supposed to be a really big case because he won US vs Microsoft. Before the first court appearance he worked out he had bought a lemon and handed the case over to someone else to lose.

[Anonymous Coward]

... the lawyers got everything and were the only ones to come out ahead.

As usual.

.

[Bebu sa Ware]

Would seem that…

each SCO successor finds an even dodgier group of lawyers to pursue spurious and imaginary claims.

Anyone outside the US might be deluded into thinking that an ultimate SCO successor might not be able to find lawyers more dodgy than their predecessors' but of course there is no discernable bound the the dodginess of the US legal fraternity.

[TheWeetabix]

Re: Would seem that…

In a sister thread to this, I observed a lawyer arguing the point that proprietary information makes research easier, or rather that making information non-proprietary stifles research.

What the actual…

[Peter Gathercole]

Sorry, pedant here. JFS (Journalled File System) not JSF (Joint Strike Fighter?).

Specifically it was the OS/2 version of JFS2 that was contributed to Linux. As I understand it, it was a complete re-implementation, not using any code from AIX.

The original AIX JFSv1 code (or at least a prototype of it, it actually looked quite different from the delivered AIX version) had been contributed to the OSF, although I think that only HP implemented any of it, so was that in the cross hairs too?

[phuzz]

I only found out yesterday (and this probably isn't relevant to the case), that IBM effectively wrote LVM, although the version in Linux today was a brand new implementation, just copying the command layout from the HP-UX version, which was based on IBM's version.

[Peter Gathercole]

I do not know for certain, but I think that the LVM in AIX predates Veritas (a contemporary commercial offering) by a year or two. Again, I don't know for certain, but I think that the current Linux LVM was contributed by Silicon Graphics (XVM or previously XLV.)

The initial implementation of AIX's LVM was actually mostly independent from the JFS filesystem.

LVM allowed physical disks to be aggregated together, and sliced into smaller 'logical volumes', together with code that enabled mirroring and data re-location within a set of disks.You also had options to manage data placement on physical disks for performance. You could also add and remove physical volumes dynamically, although this feature really came into it's own when IBM added hot-swap disks to AIX.

JFS was the filesystem that sat above LVM. In theory, you should of been able to use JFS on any device, not just a logical volume, but I believe that there were deliberate constraints put into it to not allow any other storage type. For JFSv1, the journal had to be on a separate logical volume, which made sense when implemented on LVM. The combination of LVM and JFS was the only storage available for AIX from 3.1 for quite some time, unless you were prepared to buy Veritas.

JFS was more than just journalling. It also allowed for the underlying logical volume to be re-sized (initially only up, but you can now down-size a JFS 2 filesystem in most cases).

JFS2 on AIX added more control of data placement, additional data striping, and modified control data to allow larger logical volumes to be used. It implemented block fragments, something that JFSv1 was missing. It also has in-line journals, that should allow it to be used on other storage modesl, but I've never seen it done (hmmm. I feel an interesting experiment coming on) It's continued to evolve (there are point releases aligned to AIX releases) that have added things like snapshot filesystems, although I think that relies on new features in the underlying LVM as well.

[jake]

Will no one rid us of these turbulent patent-troll zombies?

See Subject "Title".

[Jou (Mxyzptlk)]

Lets file somce other code-stealing cases

Namely the training data of our coding LLMs, the biggest code theft ever.

[Anonymous Coward]

Whatever happened to Groklaw?

I used to follow the SCO debacle via Groklaw. It felt right when PJ closed the site but Wikipedia ( https://en.wikipedia.org/wiki/Groklaw ) says it still existed to a certain degree. I wonder what PJ's life was like after all that?

[Will Godfrey]

Re: Whatever happened to Groklaw?

Same here. she was put under enormous pressure from SCO et al.

[steelpillow]

Re: Whatever happened to Groklaw?

PJ very deliberately and determinedly vanished from sight. Groklaw presently came under new stewardship. Struggles to recreate her mojo, still a long way to go.

[Stephen7Eastern]

Re: Whatever happened to Groklaw?

For important historic reasons, the beautiful Web 1.5 groklaw website has been fully archived.

https://web.archive.org/web/20130904231251/http://www.groklaw.net/staticpages/index.php?page=20070810205256644

[Eric 9001]

Re: Whatever happened to Groklaw?

Groklaw's host decided to cease operations after hard evidence was published that the NSA was spying on emails and how the US government could order email hosts to hand over encryption keys, like what happened to Lavabit; https://web.archive.org/web/20130820094217/http://www.groklaw.net/article.php?story=20130818120421175

Groklaw couldn't continue without email after all.

PJ's life likely continues to be the sucky life of being a legal assistant - dealing with legal cancer clearly sucks, even if you get paid well.

[mark l 2]

One solution to these frivolous law suits is if the court throws it out as being without any merit, the party who was sueing should have to pay the legal fees for the defense as well as their own. And the money has to go into escrow before the court hears the case to stop them claiming bankruptcy if they loose to avoid paying.

[Pete Sdev]

For corporations, yes.

For individuals, no, otherwise most people would never be able to bring a case, particularly against a large plaintiff.

[ttlanhil]

You could put caps on it to limit it to reasonable levels - if you as an individual are spending $10k on your case, and losing means you pay another $10k? That might work.

Won't cover the legal fees of a large company you sue, but if you're suing another normal citizen (not a large corp or a millionaire) that's some reassurance to them that they can afford to tell you to stick it

[I could be a dog really]

Well that is supposed to happen now - if you sue someone and lose, you pay their bills as well as your own. And those bills can be significant as Harry and his chums are finding out. But there's some interesting detail in that report regarding an up-front agreement on likely costs, and what is "reasonable".

The putting the money into escrow is a tricky one. As it stands, there is a big imbalance between "little guys" and "big guys". As a result, big businesses, as we've seen lately, can effectively do what they want (such as stealing intellectual property from authors, web site owners*, etc.) en-masse and face effectively no risk as they know the "little guys" don't stand a chance of funding any case against them. Force everyone to put up the money up front further increases that imbalance.

So while it looks like a good idea, this is one of those "bad cases make for bad law" things where something that looks like a good idea would have ramifications that far outweigh it.

* I am one of those little web site owners. I have a copyright notice that explicitly restricts what my work output can be used for (so no, AI scraping would not be a permitted use), but I think it's safe to assume that will have been ignored.

[isdnip]

This is a big difference between English and American law. Under English law, the loser pays the lawyers. This is good in theory but also means that a big corporation can hire top-price solicitors and barristers and put the plaintiff at risk of paying a very large bill if the case loses. Under American law, each side pays its own lawyers unless the judge rules that the plaintiff was way out of line, in which case the defendant can try to ask for legal fees (IANAL so I don't know the details). And the original defendant can sometimes countersue.

[retiredFool]

In a just world

You'd also disbar the lawyer who filed. But that never happens. The ultimate deterrent to having frivolous lawsuits is to make the lawyers pay with their license. They know its frivolous, but everything for them to gain and nothing to lose. They get paid. Perhaps one more deterrent as well. I forget what it is called, but there is I thought a way the court can administer a very severe punishment to the litigant. You can't file any more cases ever. The disbarment and the inability to file anything in the future means the lawyer and client will have a serious conversation before filing suits.

[Steve Foster]

Re: In a just world

Litigants who attempt to abuse the justice system can be declared vexatious, which usually severely curtails their ability to litigate.

[thames]

Normal practice for countries which have a common law civil law legal system (i.e. countries which inherited their legal system from England) is the losing party pays the legal costs of the winning party, with limits being placed on what are considered to be reasonable costs. This discourages frivolous and nuisance lawsuits that have no real basis in fact or law.

The US are the oddball in this situation, as there each party pays their own costs. This in practice means that even if you "win" you can end up losing due to your own legal costs. This is why it is very common in the US for companies and people to simply negotiate a payout when faced with a case that has no real basis.

[Bebu sa Ware]

Linux came along and delivered a *Nix …

Arguably delivered a *Nux that nixed UNIX.

In reality Linux only expanded into a vacuum that proprietary UNIX vendors created for it. The whole history of self harm and infighting was like a Three Stooges routine. The open source BSD 4.4 derived Unix distros survived but might have shared more of the vacuum and thrived but for similar legal skulduggery.

[jiho]

Re: Linux came along and delivered a *Nix …

Some of the raucous background on that....

32V was a port of 16-bit Unix 7 to the 32-bit VAX line. This port was done by a new Bell Labs team, because the original group wanted nothing to do with the VAX. The boys in Berkeley used 32V as the starting point for 3BSD and all subsequent versions.

The initial open source effort at Berkeley was 386BSD, a fork launched in the late '80s by William Jolitz with a series of articles in Dr Dobb's Journal. Linus Torvalds has stated that he did not know about 386BSD, and that if he had, he would have gotten into 386BSD and Linux would never have happened. But Jolitz was slow to accept patches and make revised code available. Two forks of 386BSD then emerged: NetBSD and FreeBSD. These two forks were so thoroughly at odds with each other that the FreeBSD boys accused the NetBSD boys of somehow having access to code that was not publicly available. The NetBSD boys then threw Theo de Raadt out of their project, whence he forked OpenBSD to formalize procedures for insulting people. So the Unix world flocked to Linux, where Linus did not formalize procedures for insulting people. Once real money was at stake, he even swore off insulting people at all.

The original zombie suit was against 386BSD and its forks, including a commercial version no one remembers. This suit failed when a court ruled it was moot because 32V had been distributed without a copyright, of all things. AT&T to the rescue! By then the forks had already migrated to 4.4BSD, claimed to be free of encumbered code. Linus avoided all this unpleasantness, until new zombies arose and came after him anyway.

[Antron Argaiv]

Correction

"...SCO had for years failed to produce strong any evidence to back its claims."

Well, Lionel Hutz would tell us that made up evidence and inapplicable evidence are kinds of evidence...

Last I remember, they were trying to argue something about APIs being similar proved infringement.

[Doctor Syntax]

One foot in the grave? The whole problem is that it keeps climbing out.

[bazza]

Let's drop a small black hole into the grave. That should stop any feet getting back out of that pit...

[Sproggit]

The Truth is a 2-Edged Sword

As an aside, can I just say that it's good to see that IBM tracked down and hired David Marriott to represent them in this latest round of idiocy. He was their lead attorney when he worked for Cravath, Swaine and Moore (the Nazgul) and it's probably fair to say that the only person who knows more about the legal ramifications of this case is PJ...

But to get to the heart of it.

A quick Google search of, "Who owns Xinuos" turns up that it is a privately held company originally formed as UnXis, in 2011, by Stephen Norris Capital Partners and the MerchantBridge Group. From what I can see, they have between 5 and 50 staff members and generate an estimated $5 million or less in annual revenue. Looks as though their main business is continuing to provide support for Unixware and OpenServer for companies who still use it.

So it seems likely that someone like Stephen Norris decided that even if the claims being touted can't be proven, he can make enough of a nuisance of himself to persuade Big Blue to part with another $15 million in settlement, just to shut him up and make him go away.

But in addition to the passage of time - which the 3 Appeals judges indicate bar this claim - there's another dimension that comes in to play... and it's discovery. IBM would be entitled to extensive discovery for all documentation, email, meeting minutes, etc., between everyone at SNCP and the people from whom he bought the company in 2011, with specific interest in to what diligence he performed over the ownership of the rights he is now trying to assert.

There are, after all, multiple court orders and judgements in IBM's favour... so we would expect to see SNCP undertaking due diligence regarding those findings and why they thought their arguments still hold merit. After all, if there really was a case to be made, wouldn't The SCO Group have put those arguments forward more than 23 years ago?

I rather hope IBM will play hardball with this one.

[mdentari]

I wish Xinous would stop. My company still uses SCO Unixware and want to move it to a VM but Xinous wants to milk us for so many fees that we will most likely stay on old hardware until it fails. Xinous wants to recoup it's legal fees from us it's customers as opposed to facilitating a fair and honest transactions for services we already paid for. I hope to God they fail as a business.

[Francis Boyle]

No matter

how many times I see, the name "Santa Cruz Operation" will never not put in mind of a mob outfit.

[isdnip]

Re: No matter

I have heard that the company, and the name, date back to the 1970 when it was the Santa Cruz Operation of Vidar, a pioneering digital telephone switch manufacturer. Vidar was originally owned by Continental Telephone, then a US rural telco holding company, and they sold it to TRW, the military conglomerate. Vidar's switch business didn't do that well but the Santa Cruz folks were doing something with Unix, so it became its own company.

[Groo The Wanderer - A Canuck]

Re: No matter

Unless, of course, you re-interpret SCO as "Scummy Crass Obscenities" and utter them to relieve your stress. :)

[Eric 9001]

Project Monterey had nothing to do with the, kernel Linux.

Reviewing this page; https://en.wikipedia.org/wiki/Project_Monterey?useskin=monobook and this reference; https://www.zdnet.com/article/caldera-loads-linux-apps-on-unixware/ which says; "called Project Monterey -- had been to unify AIX with Sequent's Dynix/ptx operating system and UnixWare. However, the explosion in popularity of Linux throughout 1999 and 2000 prompted IBM to quietly ditch Project Monterey" it appears that Project Monterey had absolutely nothing to do with Linux and was rather another proprietary Unix, that IBM ditched, as anyone who would care installed GNU/Linux instead (but it seems the article is not a reliable source, as it refers to running GNU software and software for the GNU OS, with a proprietary Unix kernel, *without Linux* as "Linux").

As for any code from IBM that ended up in Linux, the license that is applicable is the GNU GPL version 2.

SCO explicitly agreed to any of such code being distributed under GPLv2 terms, by distributing Linux under the GPLv2 (if they distributed Linux under any other terms, their license has been permanently terminated and it would be invalid for anyone who received SCO's copyrights, to make a copyright claim of Linux).

Also, why on earth does the article conflate abusing copyright law with abusing patent law? That is almost the worst journalism I've ever seen.

Yes, Huawei successfully extorts $0.50/unit from many companies, that don't have the legal resources (or regards $0.50/unit far cheaper than the billions required to gamble the in expensive patent lottery), to contest the validity of Huawei's patents on math, such math of course that has been available publicly for more than 20 years (but somehow, doing the math with a computer is different?), but that's not relevant at all to this case, as any 20+ year old patent claims are no longer an issue anymore, due to the expiry of any claimed patents.

[TheWeetabix]

That court case has had a longer career than I had.

It started out a few years before I got in, and now that I’ve “retired” (to open a shop), here it is, feebly kicking.

[Anonymous Coward]

Wouldn't it be amusing if someone decided to spend a few tokens and have some AI agents scour Xinuos products for code they don't own or have license to. It shouldn't be too hard for a company or two to finish off these trolls.