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Is OpenSolaris in hot water?

By Steven J. Vaughan-Nichols on July 25, 2008 (9:00:00 PM)

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Here's how it works: Novell owns Unix's IP (intellectual property). SCO sold Unix's IP to Sun. Sun then included some Unix IP into Solaris. Finally, Sun open sourced Solaris as OpenSolaris. Sounds like trouble, doesn't it?

While Sun's Chief Open Source Officer Simon Phipps described the line of logic above as "sheer speculation," others see a major potential legal problem for Sun. However, analysts, lawyers and open source leaders also agreed that it's unlikely Novell would ever choose to make trouble for Sun. Novell, however, has not commented on its intentions despite several attempts to get the Linux company's take on the issue.

Thomas Carey, chairman of the business practice group at the Boston-based Bromberg & Sunstein IP law firm, describes the legal details like this: "As to Sun, SCO released Sun from a confidentiality obligation with respect to SVRX (System V Release X Unix) code when its contract with Novell did not permit it to do so without Novell's permission. SCO did not seek or obtain that permission. This proceeding does not involve Sun as a party, only SCO and Novell. As between these parties, the court views the genie (the confidential information) to be out of the bottle, and the court can't put it back in. It can, however, hold SCO liable to Novell for breach of contract (and/or breach of fiduciary duty), and it did so and found the damages for this breach to be $2.5-million."

What does this mean for Sun? Carey says, "In theory, Novell could sue Sun directly, but its chances of success would be slim. Furthermore, Novell is not interested in pursuing/developing SVRX, and is more interested in its reputation in the open source community. Its lawsuit against SCO was political -- it got to wear the white hat. If it went after Sun because of OpenSolaris, it would wear the black hat. It is not likely to change hats now."

Jay Lyman, an open source analyst for The 451 Group, also can't see Novell siccing its lawyers on Sun. "Novell is unlikely to overtly pursue any kind of legal strategy against Sun. It may try to use the rulings as leverage behind the scenes, but I doubt the benefits to Novell of legal strategies or threats involving Unix, Linux, open source, and Sun. Novell has arguably more to gain by focusing on growing its Linux and open source business (including work with Sun) than to do anything that remotely resembles what SCO did."

Others agree with Lyman. "I don't believe that OpenSolaris is in much danger." says open source advocate Bruce Perens. "Novell would only be in another long lawsuit if it tried to pressure Sun, or tried to sell those rights to someone who would pressure Sun. Instead, I think we'll see Sun make some quiet deal with Novell."

Besides, Perens continues, "If pressured, Sun could buy out Novell without a problem, which would be the best end for Novell anyway."

So, most people agree: Novell could give Sun a real legal headache, but since that wouldn't serve the Linux company's goals; no one can see Novell trying it. For the time being, at least, it appears that Sun will be getting a free legal pass for OpenSolaris.

Steven J. Vaughan-Nichols has been writing about technology and the business of technology since CP/M-80 was the operating system of choice for PCs and 2BSD Unix was what the cool kids used on their computers.

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Is OpenSolaris in hot water?

Posted by: Anonymous [ip: 142.163.208.58] on July 25, 2008 09:54 PM
Well, if Novel really wants to push free software they would use the leverage from this to push Sun to GPL Open Solaris so the best of it and Linux can be combined.

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Is OpenSolaris in hot water?

Posted by: Anonymous [ip: 136.237.60.105] on July 25, 2008 10:22 PM
Given that Sun originally wrote a good chunk of SVR4 with AT&T is would be an interesting excercise to see if Sun ended up buying a license for code it originally wrote for Sun/AT&T alliance!

Remember back when it was Sun and AT&T against the rest of the planet? OSF == Oppose Sun Forever etc...

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Free Pass?

Posted by: Anonymous [ip: 203.48.45.198] on July 25, 2008 11:48 PM
"Free Pass" is an interesting description of something of the order of 10 million US dollars Steven, ...

Got a few bucks you could give me?

Alan. (who works for Sun, but knows nothing about legal dealings and contracts)

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Is OpenSolaris in hot water?

Posted by: Anonymous [ip: 24.2.156.64] on July 26, 2008 12:42 AM
I think this not such a big deal - it seems quite simple to me...

Sun paid for rights from SCO, but SCO didn't have the rights to sell - they are in breech and owe Sun their money back. Sun operated in good faith, and Novell would be hard-pressed to claim they were trying to avoid paying for the license they needed.

Sun could be required to pay Novell for the rights it thought it bought from SCO (and Sun probably will have to pay), but I don't anticipate Novell doing anything to try and collect damages...

I anticipate a cross-licensing deal between Novell and Sun, with some payment from Sun to Novell, but no big problems...

Ken

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Re: Is OpenSolaris in hot water?

Posted by: Anonymous [ip: 205.159.99.234] on July 30, 2008 02:19 AM
Except in the agreement between Sun and SCO, SCO indemnified Sun against any IP claims. So if Novell were to go after someone, SCO would have to take the arrow.

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Community to Sun: GPL OpenSolaris

Posted by: Anonymous [ip: 82.192.250.149] on July 26, 2008 07:58 AM
This is slightly off-topic, but a lot of us would like to see Sun go all the way with its commitment to free software: GPL OpenSolaris. Give it a REAL free license.

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Is OpenSolaris in hot water?

Posted by: Anonymous [ip: 72.190.96.105] on July 26, 2008 02:18 PM
I have to agree with the poster at 12:42. Fact what ought to happen is that Sun go into court for return of monies with Novell as amicius curei. The agreement between Sun and Novell is if Sun wins the award will be the licensing fee to Novell. Essentially transfer of title for the license.

I don't see how SCO can refuse, short of the fact they have no money left.

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Is OpenSolaris in hot water?

Posted by: Anonymous [ip: 72.139.82.226] on July 26, 2008 03:19 PM
Meanwhile the rest of the world is using Linux and no one gives a shit about OpenSolaris, but why let reality seep into the discussion?

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Re: Is OpenSolaris in hot water?

Posted by: Anonymous [ip: 24.2.156.64] on July 26, 2008 04:35 PM
Rest of the world is using Linux?

Really? I thought Windows had a 90% market share, and Apple had something approaching 10% of the market - exactly what do you mean by "the rest of the world"? Let me guess - you are counting downloads and web servers... I've downloaded over 100 Linux ISOs over the years, but I only have a couple Linux machines running at present - by your (assumed) math, I count as *hundreds* of Linux users, but in reality those downloads resulted in 2-3 machines...

Ken

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Re(1): Is OpenSolaris in hot water?

Posted by: Anonymous [ip: 212.123.252.242] on July 26, 2008 10:13 PM
to leverage things a bit for you,

i never downloaded an .iso for any of the 70 desktops i have running Linux, and most of those desktops were officially sold as Ms machines, so that basically evens it out a little.

But lets get back to the original topic shall we?
Obviously we are talking here about "server" machines ( b.t.w. i have 60 of those running at the moment and downloaded 1 single .iso) and the numbers are quite different in that field even when we are talking about officially bought versions.

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Re(2): Is OpenSolaris in hot water?

Posted by: Anonymous [ip: 24.2.156.64] on July 27, 2008 12:53 AM
If you want to talk server-side, fine[0]:
In 2000, Windows comprised about half of the server operating system market, followed by Unix and Netware at about 17 percent each and Linux reaching towards 10 percent, she said, noting that today[October, 2007] Windows owns about 70 percent, Linux about 20 percent, with Unix below 10 percent and Netware barely registering.

Of course, there is a counter-argument[1]:
IDC's survey is really all about measuring new hardware server sales, not what people are actually using as servers. It's also not really measuring server virtualization. For example, IBM is currently consolidating about 3,900 of its own servers onto 33 System z mainframes running God only knows how many Linux virtual machines. Again, IDC, in this survey, is measuring hardware servers, not server instances.


A far cry from "everyone runs Linux"...

Ken
[0] http://www.eweek.com/c/a/Linux-and-Open-Source/Linux-Losing-Market-Share-to-Windows-Server/

[1] http://www.linux-watch.com/news/NS8060720094.html

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Re(1): Is OpenSolaris in hot water?

Posted by: Anonymous [ip: 66.84.209.94] on July 29, 2008 09:33 PM
We're talking about the server market. In which case windows doesn't even have maybe 10% of the market. Go get a clue. Unless you want to factor in domain placeholders by registrars like go-daddy which aren't even valid since you could host a billion domain placeholders on a single server, windows or any other platform.

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Re: Is OpenSolaris in hot water?

Posted by: Anonymous [ip: 76.253.57.251] on July 26, 2008 07:47 PM
Actually who gives shit a about linsux. Linsux is nothing more than a half-assed attempt to write a kernel with everything else stolen from elsewhere. Think of the BSD drivers that had the BSD copyright stripped out and suddenly they became linsux drivers. You want a opensource OS that works get OpenSolaris or one the BSDs don't waste your time on the linsux cruft

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Re(1): Is OpenSolaris in hot water?

Posted by: Anonymous [ip: 157.130.28.70] on July 27, 2008 03:33 PM
I think the wonderful MS Crap OS started with the BSD IP stack too. Cisco started life from BSD as well. A lot is owed to BSD.

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Re(2): Is OpenSolaris in hot water?

Posted by: BBird on July 27, 2008 09:54 PM
mac os x as well

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Is OpenSolaris in hot water?

Posted by: Anonymous [ip: 71.131.181.78] on July 26, 2008 09:04 PM
I see Perens still hates Novell, with his crack about Sun buying Novell. Good luck with that, Bruce! The reality is the Microsoft deal with Novell worked out fine for Novell, and nothing you predicted came true. Deal with it, Bruce.

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Is OpenSolaris in hot water?

Posted by: Anonymous [ip: 89.226.25.45] on July 27, 2008 10:40 AM
Novell has a long story with "coopetition", a term that expresses something between cooperation and competition. This business model was certainly at the heart of their intentions at that time when Novell has knocked at the MS door, a little bit more than 2 years ago from now, proposing them some cross-collaborations. Novell always said this move was necessary for helping enterprises in their needs of mixing both technologies, windows and linux. Part of this deal, there was some royalities clarifications with their own proprietary softwares depending on some patented technologies and concluding on a "casesuits umbrella" (including Novell's linux world) against each other (as a normal process in this case as in any industrial colaborative deals). The results of that deal are seen today as a success story by analysts on the business ground and by costumers also.

I think that Novell has now some materials in hands to go the same way with Sun as with MS. First, OpenSolaris will go further its own way of development without fear of any bad story in a courtroom, and parhaps evolving to the most popular GPL. Second, Sun will propose SuSE Linux Enterprise Server (SLES) as an alternative OS (the default and the best one for marketing) to OpenSolaris on their own machines. And third, behind the sceene, there will be some cross-licensing developments in the Java and mySQL arena (remember that JBoss has gone to Red Hat). Also in the infrastructure arena there are things to do with directories and datacenter tools, and why not with some good system tools.

This kind of deal will certainly be a good deal with new opportunities for everyone. But be patient, it needs few month until it may become official (if that will hapen like this). Perhaps Sun will make some claims to have its money back from SCO, and Novell as the first witness. But bankruptcy protection won't help to go this way... today.

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Is OpenSolaris in hot water?

Posted by: BBird on July 27, 2008 09:55 PM
what does it mean "owns unix ip"? too vague for me.

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Re: Is OpenSolaris in hot water?

Posted by: Anonymous [ip: 69.244.98.225] on July 28, 2008 05:11 PM
Owns the Unix Intellectual Property - like a patent or copyright, it is the right to control what is done with the work product known as "Unix", a name which includes a code base, a trademark "Unix" and likely some other assets I can't think of at the moment.

HTH,

Ken

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Is OpenSolaris in hot water?

Posted by: Anonymous [ip: 67.168.32.54] on July 28, 2008 05:51 PM
This seems yet another reason that Sun should help with Linux kernel development. Or perhaps Sun should concentrate on one of the specialized Linux kernels such as "real time" or "carrier grade" or supercomputer clusters (perhaps IBM has that covered). Sun fought co-operation in the 80s and did OK in the 90s, now it is time for a new vision - open source - which many would claim is back to the roots of UNIX before patents were allowed on software.

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Is OpenSolaris in hot water?

Posted by: Anonymous [ip: 208.118.201.141] on July 28, 2008 08:08 PM
The madman raves again ...... Just when you think Steven J. Vaughan-Nichols cannot write a more nonsensical column, he goes out there and proves you wrong.

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Is OpenSolaris in hot water?

Posted by: Anonymous [ip: 66.84.209.94] on July 29, 2008 09:26 PM
I'm pretty sure that any IP that Sun released into OpenSolaris has already been released under GPL by either Novell or SCO themselves, thus rendering it "royalty free". This is most likely a non-issue and a product of a slow news day.

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Is OpenSolaris in hot water?

Posted by: Anonymous [ip: 70.2.168.182] on July 29, 2008 09:49 PM
The amount of historical ignorance here (including Vaughan-Nichols'), is staggering. I'm doing this from memory, but I remember clearly that Sun bought out the full rights to the Unix System V source code (the basis of Solaris 2.x and up) from Novell (which itself had recently purchased majority ownership in Unix Systems Lab from AT&T) back in the mid-1990's. Sun, of course, already owned the rights to SunOS (also called Solaris 1.x), which was largely based on Bill Joy's Berkeley's BSD Unix, not AT&T's System V.

I was just about to join Sun at the time, so I paid close attention to the transaction. This was a true technology and IP "buy-out" - Sun paid several million dollars for a full and perpetual buy-out of all AT&T/Novell/USL System V code and technologies. This was a big deal, because Sun was no free to use and modify the System V code in ways that were more difficult for their competitors, especially IBM, HP, SGI, and DEC.

Because of this, Sun has been free to do whatever it wants with Unix for over 15 years. (IIRC, a similar agreement was signed a couple of years later by IBM, which got a better deal than Sun did.

Bottom line, as I understand it, there is NO possible exposure for Sun - AFAIK, they and IBM are the only companies that are fully lawsuit-proof in this regard - and this is the fundamental reason that Sun could offer several years ago to indemnify its customers and users against any and all claims of IP infringement such as the SCO suit. SInce their license was a complete buy-out, they are completely free to do anything they want with the code, including opening the source of Solaris. (FWIW, for the last 15 years, most Sun customers could get the Solaris source code from their SE for the asking, anyway...)

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Is OpenSolaris in hot water?

Posted by: Anonymous [ip: 24.191.119.18] on July 30, 2008 05:06 AM
Yes, I agree with the above post. I remember it was around March 1994 Sun purchased the perpetual rights for 82.5 million dollars. Here is a small quote from the Sun announcement "Sun Microsystems, Inc. announced that it has reached an agreement that eliminates all royalty obligations to Novell for UNIX-based licensing, and is now released from distribution and licensing restrictions for Solaris and its technology components included in a prior 1987 agreement". See link for announcement: http://sturly.com/sunsoft_announcment

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