Summary: Wild, wild SCO is doing more wild things

THE NOTORIOUS SCO case will resume in a couple of days and for those who missed the fascinating developments from the past couple of weeks, see:

• Groklaw Unearths Another SCO Scandal; SCO Heads Sued for Theft, Computer Fraud and Abuse
• More on the Amazing Story Behind SCO (and Possibly Microsoft)
• SCO Scandals Get Worse: unXis Seems to be All About SCO
• IBM’s Latest Filing Regarding SCO Bankruptcy Mentions “Fraud”
• SCO Scandals Finally in the News

Heise has this report which highlights payments from SCO (and from Darl McBride’s own bank account) to its to-be rescuer. If this sounds dodgy, it probably should, but then again, it’s SCO we’re talking about.

According to SCO, Steven Norris, who heads a group of investors which hopes to rescue SCO from liquidation, received $100,000 for a study he carried out for SCO Japan on emerging markets in Brazil, Russia, India, China, the Middle East and Africa. The company also states that $100,000 was paid from SCO boss Darl McBride’s personal funds as payment for Norris’ efforts to put together a group of investors to back SCO. It sees the fact that of all its creditors only Novell and IBM have complained about Norris’ role and challenged the contracts being drawn up to transfer software development to Unixis, as significant. SCO pugnaciously declares that, “In stark contrast [to the other creditors], IBM and Novell are out for themselves and seek only to avoid the consequences of their wrongful exploitation of the Unix computer code for the benefit of their Linux-related business. It is telling that with one possible minor exception, no other creditor has filed an objection to the sale.”

This is amazing. Now watch this from Groklaw about “York [possibly] lurking in the shadows.”

So much is happening at once in the SCO bankruptcy. Novell has filed a Response [PDF] to SCO’s Notice of Cure Amounts. Oracle has filed a limited objection [PDF] to SCO’s Notice of Cure Amounts and is sending in a lawyer [PDF]. IBM is adding yet another lawyer, Noah J. Phillips [PDF]. Oracle has a claim listed on Exhibit A [also continued here], but it says it has no clue what contract is involved.

Watch this one too. SCO is now trying to portray itself as a victim. Groklaw writes:

Dude, Novell won. You lost. Get over it. No one harmed you if you don’t own the copyrights. And if the contract says Novell can block your litigious moves, that’s what the judge said the contract says. That isn’t harm to you. It’s harm to Novell that it had to go into court and deal with bogus claims to establish the obvious. As for IBM, I believe it is going to wipe the floor with you, as I’m certain you know by now, even if by some miracle the copyrights became yours after all. That’s because you have been unable to demonstrate any meaningful infringement.

Things are going to get interesting on Monday. Knowing SCO, it is possible that it will pull some money from somewhere in order to pursue more litigation against Linux, never mind the clout of bankruptcy. █

“…Microsoft wished to promote SCO and its pending lawsuit against IBM and the Linux operating system. But Microsoft did not want to be seen as attacking IBM or Linux.”

–Larry Goldfarb, Baystar, key investor in SCO

The Linux kernel is clearly a piece of software that is not built to integrally operate with a particular device. To be more precise, it is not implemented to achieve a particular physical process. Several months ago in court proceedings, a Microsoft lawyer explicitly said that a device needs to be involved in order for a patent to be valid. That was Microsoft arguing that software patents as we know them should be considered invalid. This happened in a US court of law. Shane and I recorded this dialogged and had this mentioned before.

The following new article from The Register talks about arguments involving the British patent system. Let it be repeated that software patents are not valid in the UK and here is a more precise explanation.

“The UK IPO’s position is that only when the patented item and its software are combined, when you are dealing with the whole package, are they offered protection,” he told us.

This leads back to discussions about the most recent patent deal which involves embedded Linux. One discussion went on to asking whether the LG, Samsung, Fuji Xerox, and Kyocera Mit deals actually mean anything to Linux. Matt Asay, who started his OSS/Linux-oriented career when he worked at Lineo (embedded Linux), rebuts and clarifies.

I doubt Microsoft has been any more forthcoming in private about its patent claims than it has in public. I used to work for a large Japanese company (Mitsui & Co.). I also used to work for an embedded Linux vendor. Between the two roles I discovered that Japanese electronics companies use a lot of Linux and they’re also very conservative.

Mix the two together, with a finger-pointing, brash American FUD-meister like Microsoft, and you get a patent deal. I don’t think there’s much more to it than that.

Regardless, Linux had a strong toehold in embedded Linux before Microsoft even thought of being relevant there. If nothing else, I’m guessing any claims around embedded Linux would be swatted down on prior art (whether that’s from Linux or VxWorks, pSOS, etc.).

As further evidence and information about this consider:

• $3 Windows a threat to Linux?
• The Be Very Afraid Tour and a Word About that Patent Study
• Microsoft needs to lay off the Linux FUD
• FSF Says GPLv3 Means Microsoft Patent Protection for All

That last item is very interesting in retrospect, due to FSF/Microsoft disagreement that soon followed.

In the following new video, Eben Moglen says more about the GPLv3, but he also talks about software, hardware, and patents.

I just got a note from Joe Latone of IBM Research that brought the happy news that the video of Eben Moglen’s talk Copyleft Capitalism, GPLv3 and the Future of Software Innovation, given at at IBM Research on October 29, 2007, is now available online

Embedded stream below, if you have Adobe Flash (link for gnash users is provided above).

An interesting little press release did not grab the attention of journalist because it appears like “just another licensing deal”. However, given what we’ve found in the cross-licensing deals with Fuji Xerox and with Samsung (departing from hardware devices, one might even include Scalix here) , one has to stop and wonder. One of the new licensees is Aruba, which builds products using Linux. The press release says nothing about Linux however.

“The innovative solutions we built using Windows client-to-server protocols were made possible by our ready access to technology and documentation as an MCPP licensee, as well as our close alliance with Microsoft,” said Michael Tennefoss, head of strategic marketing at Aruba Networks.

Remember what Shane said about MCPP, also in the context of Novell and Xandros.

What makes Aruba particularly special in this context is that it is one among the few companies whose Linux products Microsoft depends on.

What the press statement didn’t mention is that Aruba mobility controllers run the Linux operating system which Microsoft has aggressively targeted as being inferior to Windows as part of its “Get the Facts” marketing campaign.

[...]

Pandey’s appraisal of Aruba’s technology is in stark contrast to Microsoft’s “Get the Facts” rhetoric which places Windows as a more secure, and higher-performing choice over Linux.

Is there something going on here which goes beyond what meets the eye? Any screws being tightened?

In the following image, lines along with the letters represent companies that Microsoft uses in order to fight the threats which these lines link to.

A = Apple
C = Corel
F = Fuji Xerox
Cx = Citrix
L = Linspire
N = Novell
S = Samsung
T = TurboLinux
X = Xandros

This was put together rather quickly, so any corrections and additions would be very welcome.

Fortunately, the world which revolves around embedded Linux yawns and continues to ignore the FUD. It’s safe to say this based on a recent survey. The polling process took place around the time other such deals were made.

As a result, patent worries are down among Linux users over the last three years. LinuxDevices.com’s latest reader survey, published earlier this month, suggested that only about 22 percent of embedded Linux developers take patent concerns seriously, down from 33 percent two years ago.

No only is this fear unfounded, but it also appears to be on a sharp decline. Linux continues to thrive in the mobile-, embedded-, and devices-oriented area. Only yesterday, for instance, the following three announcements were made:

Intel shows more advanced ultraportable

Instead of Windows, the MIMD uses Midinux, a Linux operating system for mobile devices from China’s Red Flag Linux.

And these ones:

Pepper Computer Announces Pepper Linux Support for Intel-Based Mobile Internet Devices

Pepper Computer, Inc. today announced Pepper Linux support for Mobile Internet Devices (MIDs) based on Intel low-power processors and chipsets.

Canonical refines mobile Ubuntu Linux

“Ubuntu Mobile and Embedded edition is expected to deliver fast boot and resume times, and reside in a small memory and disk footprint,” Canonical said in a statement.

These are just 3 among several new Linux devices/ports that are being introduced in a single day. LinuxDevices.com boasts about half a dozen a day.

The LG deal was probably irrelevant in the sense that it does not appear to scare anybody. Developers move on while media chooses a sensationalist tone to create the illusion that a difference was made.

Will we be seeing more Linux devices than ever before? You bet. Here’s a new video of one (Palm Foleo).

There is not much to see here because the previous deals with Fuji-Xerox and Samsung are similar (wording varies however). There is little to be worried about, but small companies that use embedded Linux ought to put an end to coverages such as this, which remain non-specific. Why would Linux require coverage? What Microsoft patents does Linux infringe on? Not a word from Microsoft. Recall deals where companies got betrayed or overcharged because patents simply remained hidden. In any event, here is the obnoxious part of news:

Under the agreement, LG will be able to use Microsoft-patented technology in its products, including Linux-based embedded devices.

To eliminate the path of destruction, one ought to force Microsoft to show its hands. Better sooner than later.

Dell supposedly gets pounded by a hoard of folks demanding they come up with a Linux box. Dell goes back and forth and finally gives in, announcing they will use Ubuntu. Than (sic) Dell does a strange thing and joins in the Microsoft-Novell alliance.

As pointed out the other day, Microsoft may be tying Dell’s arms. It essentially tries to establish precedence for OEMs, just as they did with Novell (for Linux distributors). Mind you, what we hypothesised about precedence a few months ago soon became a reality, as evidenced by Microsoft’s own words.

Nevertheless, Microsoft has pursued deals that incorporate similar legal principles. Among these are licensing deals Microsoft struck on Mar. 22 with Fuji Xerox, a joint venture between Fujifilm Holdings (FUJI) and Xerox (XRX); and on Apr. 18 with Samsung. Gutierrez says the arrangements resemble aspects of the Novell agreement. Those companies received licenses from Microsoft for technologies used in Linux and other open-source software contained in products they sell.

Novell cannot argue that its deal was benign. It can no longer pretend that its white flag has had no impact on Microsoft’s future actions, which GPLv3 will put a stop to. Notice this Al Capone-like reference as well:

When it comes to compensating Microsoft for its intellectual property, discussion is less painful than litigation, according to Horatio Gutierrez, Microsoft’s vice-president of intellectual property and licensing. “The alternatives to licensing are alternatives that aren’t very attractive for anyone,” he says.

In a different context, this would be equated to corporal threat. Is Microsoft truly willing to annoy some of its own customers, who use Linux at some level of capacity? As aggressive as Microsoft has become, the world seems somewhat apathetic. FUD will be FUD. Nothing more. We have learned our lesson from SCO.

Through the agreement, Fuji Xerox will obtain access to Microsoft’s patents for Fuji Xerox’s existing and future product lines, including products that incorporate proprietary source and open source software, such as Linux.

“open source software, such as Linux”

If Samsung gets counted as well, that makes three. Microsoft has apparently learned its lessons from the Novell deal. It no longer makes loud noises or issues any spontaneous threats.

Nevertheless, it does not mean that all is well. It could merely be the calm before a storm. It is important that any deals which involve patents are looked at carefully. There is no reason in the world why Linux should be included in patent deals, but Microsoft may be trying to build a strong and compelling case to serve as precedence, one company (victim) at a time. Could it be just too far-fetched?

Looking at the language in the press, there are subtle inconsistencies, but never any clarifications. It may be vague by design, to increase the doubt and uncertainty factor. From “Linux-based products” in one case, here we have “open source software, such as Linux”. Nobody has ever bothered to explain what products are involved. Justin Steinman declines to comment, putting the blame on the SEC.