From mboxrd@z Thu Jan 1 00:00:00 1970 Return-Path: Received: (majordomo@vger.kernel.org) by vger.kernel.org via listexpand id S269620AbUJWAhE (ORCPT ); Fri, 22 Oct 2004 20:37:04 -0400 Received: (majordomo@vger.kernel.org) by vger.kernel.org id S269618AbUJWAfU (ORCPT ); Fri, 22 Oct 2004 20:35:20 -0400 Received: from mail1.webmaster.com ([216.152.64.168]:55301 "EHLO mail1.webmaster.com") by vger.kernel.org with ESMTP id S269388AbUJWAY6 (ORCPT ); Fri, 22 Oct 2004 20:24:58 -0400 From: "David Schwartz" To: Cc: "brian wheeler" , Subject: RE: Linux v2.6.9 and GPL Buyout Date: Fri, 22 Oct 2004 17:24:36 -0700 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.6604 (9.0.2911.0) Importance: Normal In-Reply-To: <417990AE.5050806@drdos.com> X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.2180 X-Authenticated-Sender: joelkatz@webmaster.com X-Spam-Processed: mail1.webmaster.com, Fri, 22 Oct 2004 17:01:32 -0700 (not processed: message from trusted or authenticated source) X-MDRemoteIP: 206.171.168.138 X-Return-Path: davids@webmaster.com X-MDaemon-Deliver-To: linux-kernel@vger.kernel.org Reply-To: davids@webmaster.com X-MDAV-Processed: mail1.webmaster.com, Fri, 22 Oct 2004 17:01:33 -0700 Sender: linux-kernel-owner@vger.kernel.org X-Mailing-List: linux-kernel@vger.kernel.org > Darl seemed like a nice enough sort, but he doesn't care much for Linux > or IBM and he's pretty harsh > on IBM. We argued for 30 minutes about SMP support in Linux and I think > he will just let this one go since > I pointed out that Novell had disclosed the Unixware SMP stuff at > Brainshare and he cannot claim > it as trade secrete any longer. He would not budge on RCU, NUMA, JFS, or > XFS however, and he > also said any IBM employee who contributed SMP code in his opinion may > have misappropriated it > and he would claim any contribution from any IBM employee in Linux. IANAL, but I'm pretty sure you can't go after innocent third parties for trade secrets or misappropriated intellectual property. That's what we have copyright and patent for. He can certainly go after the people who actually stole the trade secrets or misappropriated the intellectual property, but only copyright and patent provide the public notification requirements that permit one to sustain claims against innocent third parties (those who use the stolen/misappropriated property without any knowledge that it was stolen or misappropriated). If he's trying to claim that any use subsequent to some point at which we are supposed to have known that it was stolen or misappropriated, a listing by category is not anywhere near sufficient, IMO. Even files and line ranges don't suffice. He would have to provide us with sufficient information to *verify* the *credibility* of his claim. This has never been done. The biggest missing piece is *what* it is that has been stolen. If it's conceptual ideas, like the idea of SMP but not the code, then he's just totally out of his mind. Only patent provides that type of broad protection. If it's a 'derived work' type argument (that we stole something from him and changed it, so it's not literally the same but still his property), then he's again totally out of his mind. Only copyright provides that type of protection. In any event, it's self-defeating, IMO, to act on SCO's claims at this point. Until they're well enough defined that it's possible for us to investigate them, we are still innocent third party victims of someone else's misappropriation. And that's not our problem. Again, IANAL. One other issue with trying to work with SCO just to prevent future problems -- SCO has already offered bogus immunities from liability. So I wouldn't trust any immunity you even think you have. Especially since we don't know what it is we're supposed to be immune *from*. (Is it copyright? Is it trade secret? Is it fruit of some kind of poisonous tree because IBM violated the spirit of some contract none of us are a party to?) DS