Late Friday Judge Kimball has ruled that:
..the court concludes that Novell is the owner of the UNIX and UnixWare Copyrights.
The court also ruled that "SCO is obligated to recognize Novell's waiver of SCO's claims against IBM and Sequent". This means that SCO has no rights to assert against IBM and the case is dead. We all knew that SCO was at a dead end but the judge has put the final nail in the coffin.
This also has another interesting parallel. I am not a lawyer but the core of SCO's claim is that is that Linux is an unauthorized derivative of Unix.
Now if Novell clearly owns Unix and it is a derivative of Unix (now authorized) there is now a ton of prior art for the Linux Operating System. The significance is this. If Unix is prior art for Linux then Microsoft's claims of patent infringement as it relates to the Linux OS itself (not packages like Samba etc) are dead in the water.
It will be interesting to see what happens in this respect now that Linux has a heavy provenance.
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Prior Art
I am not a lawyer either, and certainly not a patent lawyer. But I was under the impression that prior is prior art. In other words, the mere existence of prior art relating to a particular patent is grounds for rejecting the patent regardless of who owns the copyright of the underlying software.
What I am saying is that in my (unprofessional opinion) this doesn't change anything. Prior art in Unix (or any other source ) could be cited before this decision or after it.
If I am wrong, someone please correct me.
Oh I doubt it...
Come on! There's two major holes in this logic train! :-)
1. That all of MS's supposed (and sooper sekrit) Patents are actually based on that prior Unix activity in the first place - which regardless of this judgement - would have those patents rendered invalid *anyway*. and;
2. That the linux kernel is in some way an unauthorised derivative of Unix.
ie You believed TSCOG's dog'n'pony.
Nice try, but we're clutching at straws aren't we? :-)
Hmmm - not quite right. Devil is in the details.
Greg,
This is a far more complicated issue than most appreciate, and it's easy to slip up on the terms and implications. For example, Prior Art applies to patents, not copyrights, which affects your logic a bit, though the conclusion is still valid.
In this case, even the judge may have made a small error in wording because he relied on the filings.
Judge Kimball did determine that Novell owns the copyrights for Unix, as disputed in this lawsuit ...
... however, it's not clear what those exact copyrights are, and they are NOT the only copyrights.
There is some question whether Novell actually owns the copyrights you think they do
or that SCOG claimed they did.
They own some, but not ALL of Unix IP.
What SCOG owns is development rights, going forward.
The judge would have been clearer if he had said that SCOG does NOT own the copyrights in question.
I say that, because before SCOG was Tarantella and Caldera International, morphed from Caldera, who bought the the original Santa Cruz Operations (SCO), who bought from Novell who got USL from AT&T, which held most UNIX copyrights.
A lawsuit between BSD and AT&T prior to divesting the USL unit, as well as changes in copyright law and publication caused some UNIX copyrights to be nulled. What Novell bought was the rights to whatever IP there might be, but OTHER parties have also contributed to UNIX. SGI, Sequent and IBM, amongst others, all have valid patent and copyrights in Unix. The complex shared code base was and is a legal quagmire. Novell, AT&T and BSD recognized that years ago. Getting it straight might not be worth the effort, hence cross-licensing is common.
What is clear, is that SCO did not get the copyrights that Novell may have held. SCO has no standing to pursue those copyrights! However, since SCO-Caldera-SCOG bought UNIX development rights, they have copyrights to code THEY DEVELOPED and added. So they do have some valid copyrights. Just not the ones in question in the SCO/IBM/RedHat/Novell cock-up.
The result is the same. SCOG is neutered as regards any claims.
However, they claimed IP from UNIX was leaked into Linux.
SCOG and Novell have a CONTRACT that lets SCOG move forward with UNIX development and Novell will help "protect" SCOG's developments via Amendment #2 provisions.
More to the point, does SCO or anyone present a threat to Linux? The claim was that IBM leaked Unix into Linux. There has never been a clear case shown of any protected code showing up in the Linux kernel. All the instances SCOG cited were shown to be properly contributed and validated. First you have to show the code, then show you own it. No one has passed that first hurdle.
"LINUX" however is also a distribution of non-kernel code. Somewhere in the megabytes of added distro code, there may be copyrighted or patented code, however, it is yet to be shown, it is not controlled by SCOG and it is likely not significant.
The last couple years have pretty much cleared any Linux kernel code of any violations or potential threats from ANY source.
I think you might be anticipating the claims by Microsoft, that they own 235 patents which are infringed by Linux OR other Open Source software distributed with Linux. Here, Prior Art and Obviousness can impact the validity of patents.
Most serious observers suspect the MSFT claims to be pure FUD, because so much prior art exists. Patent examiners have trouble in evaluating software and there are many patents that should never have been granted. We've seen what patent trolls can do however.
If Microsoft really had valid claims, they'd list the patent names and descriptions. It's more likely they own patents which would be found invalid if they ever got scrutiny from skilled code writers and lawyers.
By making threats without providing details, Microsoft may actually be limiting any legal standing they have, due to affirmative defenses of ESTOPPEL and LACHES.
However, the above facts have never stopped lawyers or Microsoft before. As you say, time will tell.
I agree with your conclusion: that LINUX is probably free of any REAL threat at this point. I agree any threats will not come from SCO, especially since that have to deal with possible bankruptcy and the fact that the judge actually found THEY engaged in theft (conversion) in their Microsoft and SUN licensing deals.
I might mention that there is still lots more to come in the SCOG family of suits. There are contract issues, big money and ownership questions yet to litigate. We have Novell, SUSE, IBM and RedHat yet to get satisfaction, and there will be millions of dollars at stake. Stay tuned.
I would suggest that you visit http://GrokLaw.net if you'd like to read or learn more about this case and the law.
Prior art
I was a practicing patents consultant for many years, and the prior art mechanism assumed here is incorrect. Prior art, as it relates to patents, anywhere in the world, is a term relating to *any* published document, whether a patent, engineering or academic journal, widely available source code or public correspondence (e.g. a web forum or web site).
To summarize: Linux is already in a very strong position with respect to prior art materials. The reason a company might refuse to mention which of its patents Linux infringes is that the chances of those patents being truly novel is extremely slight.
In the unlikely event that there is an infringement by the Linux kernel of a court-validated patent then, almost certainly, the code/concepts can be changed so that Linux doesn't infringe.
Such refusal to specify can only weaken the credibility of the patents system.