Most of the attorneys who are listed as being involved in SCO v. AutoZone have been told that by the court they are in violation of Special Order 109, which is a requirement to participate in the electronic filing system. They are instructed to go to the US District Court for the District of Nevada website and sign up. It sounds quite alarming, the way it's worded, but trust me, they don't drag them out at dawn and shoot them for this or disbar anyone. It's just the wording of the notice, which is standard. You can find Special Order 109 [PDF], In re: AUTHORIZATION FOR CONVERSION TO CASE MANAGEMENT/ELECTRONIC CASE FILING, here. It's local to Nevada, but it's part of the federal court system switch to digitalization. The Clerk of the Court is responsible to keep the official record, and so there has to be a way to identify when an attorney is who he says, when a document is filed. So this is what it refers to, that they need passwords and such. It also represents their consent to being served electronically.

Kurt Opsahl of EFF has just announced that the restraining order on the MIT students has been lifted:Today, Judge George O'Toole lifted the gag order on three MIT students who were sued by the Massachusetts Bay Transportation Authority for discovering a security vulnerability in the MBTA's fare payment system. The Court found that the MBTA was not likely to prevail on the merits of its claim under the federal Computer Fraud and Abuse Act. MBTA had argued that the CFAA, which prohibits the transmission of a program that causes damage to a computer, also covers "verbal transmission," such as talking to people at conferences. Judge O'Toole, however, looked closely at the statute, and held that the CFAA does not apply to security researchers like the students talking to people. More details to follow. [Update: The MBTA had sought to convert the temporary restraining order into a preliminary injunction to last for five months, to give them time to fix the vulnerabilities -- here's the motion [PDF] -- and that was denied. It's worth reading, this motion, if only to see why this thing swirled out of logical bounds. One issue is that when the MBTA hears the word hacker, they seem to think it means cracker, and they viewed the DefCon conference as a meeting where people go to learn how to break in to other people's stuff, which naturally panicked them. And they seem to imagine that using Wireshark, which used to be called Ethereal, is "illegal activity", as you can read on page 25. Nor did they understand geek humor. Just a real culture clash, with misunderstandings that led to litigation that now seems to be resolvable, now that the MBTA's attorney says he wants to meet with the students, to learn more about their research findings.] So the attempt to stretch the Computer Fraud and Abuse Act has failed. Please read the statute for yourself, and ask yourself: do you want talking about computers and security to become a crime punishable by fines and imprisonment and subject to FBI and Secret Service oversight? That's what almost just happened. You can find the documents in MBTA v. Anderson here. If you read the MBTA's complaint, you'll find the allegations of violations of the CFAA on page 12. I think you'll find the MBTA interpretation of the statute shocking ("... the damage constitutes a threat to public health and safety... affects a computer system used by a government entity for national security purposes..."). The research was about getting a ride on a subway for free. In any case, the judge didn't buy it, with respect to the restraining order.

I've been puzzling over something in the ISO press release announcing that the four appeals against OOXML as an ISO standard, from Brazil, India, South Africa and Venezuela, would go no further. In the press release, it said this:According to the ISO/IEC rules, DIS 29500 can now proceed to publication as an ISO/IEC International Standard. This is expected to take place within the next few weeks on completion of final processing of the document, and subject to no further appeals against the decision. Wait a second. What's that "subject to no further appeals against the decision" part? What rules would those be? When I read the JTC1 Directives, Edition 5, Version 3.0 [PDF], I see in the section on appeals another step you can take if the TMB/SMB decide not to proceed with your appeal, which is what just happened: 11.4 Appeal Against a Decision of the TMB/SMBs An appeal against a decision of the TMB/SMB shall be submitted to the Secretaries-General with full documentation on all stages of the case. The Secretaries-General shall refer the appeal together with their comments to the members of the Councils within one month after receipt of the appeal. The Councils shall make their decision within three months. So, ask your lawyer, but I read that as saying a denial by the TMB/SMB is *not* necessarily the last word, no matter what the press release said, if an NB wishes to bring the appeal to the next level, which would be to the "Secretaries-General" and "the Council". Who's that? How does that work? I've done some digging, and here's the joke. Three of the appealing NBs are listed as members of the Council. Again, ask your lawyer, but here's what I've found.

More bankruptcy filings. And there are upbeat chirpings in the air in Utah, with SCO proclaiming its own future brighter than they thought it would be, and you can read all about it in Tom Harvey's article in the Salt Lake Tribune, which calls SCO "the comeback kids". No bias there. It might be a tad early for that title, methinks. IBM still looms on SCO's horizon, after all. Novell was a sideline. The main event has yet to occur. SCO doesn't need as much money as they thought they would to give to Novell, so maybe Darl McBride can stay on as CEO after all, we learn. There's a new business plan that sounds like it has to do with calendars online and messaging, and ... well, read about FC Mobile Life, its project with FranklinCovey, for yourselves: That type of transaction is essentially what happens with the FranklinCovey product FC Mobile Life, which provides near-instant communication for scheduling, delegating tasks and sending text, photos and audio, said Jeff Hunsaker, SCO president and COO. "Our focus here is on collaboration, and it's real time. It's real-time collaboration with people you trust, with a group. We've kind of brought it all together. That's the value we bring here." FC Mobile Life can work on BlackBerries and phones running Windows Mobile, with iPhone compatibility under development. The system interacts and updates information on a Web browser and smart phone. SCO also is working to integrate Microsoft's Outlook e-mail and calendar into the system. So that's the plan. The new one. Real time collaboration with people you trust. Hmm. Trust ... People you trust. Hmm. Remember when they used to call Darl McBride "the Linux Killer"? Methinks that's still the real business plan. In his dreams.

SCO keeps changing its story of "infringement", and so over the years, we've tried to track all the twists and turns, comparing their allegations with evidence available on the Internet or in our collections. SCO made it harder when it removed its collection of press releases from its site and from the Internet Archive. I had forgotten all about it, but years ago, before they did that, I had saved their list of older press releases, meaning for us to eventually look at all of them. Then, they disappeared, and I just stumbled across the information again now, and I'd like to share it with you. Even the names of the press releases could be useful. If anyone gets sued at any point, at least they'll know what to ask for in discovery. I also discovered a wonderful site, Sourcewire that still has tons of Caldera press releases from 2001. Here's one I found there, the announcement about OpenUnix 8. That's the one with LKP, the Linux Kernel Personality. Guess what LKP included? The LKP technology in Open UNIX 8 will include the same GNU tools and libraries built into Caldera OpenLinux(tm), which were developed with close adherence to the specifications of the proposed Linux Standards Base (LSB). Open UNIX 8 will track this developing standard, assuring the highest degree of application compatibility. Libraries, eh? How fascinating. Isn't this fun? And what a dovetail, in that we just showed you what was included in OpenLinux. I have some more to show you on that in a later article. But do you see how valuable all scraps of information are? You just never know when it will matter in litigation, somewhere, some time.

Here are some more screenshots for you, showing the real Santa Cruz Operation relationship with Linux before the modern day SCO Group began suing the world and its dog. Back in the late 1990s, Santa Cruz had what it called its "Linux strategy". It included both money and support to help Linux succeed. Our first headline, from 1998, is "SCO Sponsors Linux." Yes, Santa Cruz represented itself at the time as hopping on board the Linux train, which even back then was being used in the corporate environment. At the time, SCO wanted to encourage Linux as an alternative to Microsoft, which at the time was considered its "enemy". In a press release, it talked about its "ongoing strategy to support the Linux and Open Source movements". Let me show you, please, what I found.

I know it will not surprise you to hear that ISO/IEC have rejected the four appeals against OOXML. Here's their press release. Now what? Andy Updegrove: Under the ISO rules of process, this now paves the way for the as-adopted version of OOXML, now called IS0/IEC DIS 29500, Information technology - Office Open XML, to proceed to publication. That version is substantially different than the current implementation of OOXML in Office 2007, and its text has still not been publicly released by ISO/IEC. According to a joint press release, "this is expected to take place within the next few weeks on completion of final processing of the document." Intriguingly, the press release goes on to say, "and subject to no further appeals against the decision. That should be hilarious, when they publish it and anyone tries to actually use it. Anyone? Bueller? Keep in mind that Microsoft's Office 2007 does not implement OOXML. Infoworld May 21, 2008: On Wednesday, Microsoft said it will not have support for the current ISO specific for OOXML until it releases the next version of Office, code-named Office 14. The company has not said when that software will be available. No one does. How could they? Why would they? What really happens next: the complaints lodged with the EU Commission. ISO/IEC decided to go down with the ship.

There is a status conference scheduled in AutoZone for Monday, September 22nd at 9 AM. Here's the notice on PACER: 71 - Filed & Entered: 08/14/2008 Minute Order Setting Hearing Docket Text: MINUTE ORDER IN CHAMBERS of the Honorable Judge Robert C. Jones, on 8/14/2008. By Deputy Clerk: K. Goetsch. IT IS HEREBY ORDERED the parties shall appear before the Court for a Status Conference on Monday, 9/22/2008, at 09:00 AM in LV Courtroom 7D before Judge Robert C. Jones.(no image attached) (Copies have been distributed pursuant to the NEF - KXG) I don't know if one of the parties is initiating this stirring of the dust in Nevada, or if the judge wants to find out if this moribund case is ever going anywhere, but he may have some questions after reading the parties' status report SCO filed recently. Perhaps he is of the opinion that litigation should have an end, not just a beginning. Of course, SCO being SCO, they'll do the "but we were only found liable for $3 million" dance, I suppose, and the "we own OpenServer" do-se-do, and OpenServer is part of what AutoZone was allegedly about. So, if you want to review all that, here's SCO's Complaint and Groklaw's AutoZone Timeline, where you can find all the filings, and the article on SCO's Free-OpenServer we recently published.

I've been getting a lot of requests to tell you what the appeals court ruling in Jacobsen v. Katzer means. Some would like me to simplify and just tell you the bottom line, so here it is, my take on what it all means: It means that while OSI's handling of a list of approved licenses worked very well for a community made up of FOSS programmers, who are decent folks all on the same page overall, now that enemies of FOSS are attacking, we need a new organization to vet licenses going forward a lot more carefully, one made up of experienced FOSS lawyers, none of them with a history of hostility to, or ignorance of, the GPL, with the community as advisors. Well, you asked me "what it means", and that is my opinion. Licenses now matter in a way that they didn't in the good old days, and it's time for programmers to realize that writing a license, and choosing one, is best left for lawyers, because what you write and what you choose can impact the entire community in ways you don't even understand, in ways that can undermine and even destroy it. I'll write an article explaining why that is my opinion in due time, but it's so complex, this case, that it will take some time. But that is the bottom line as I see it. This case was very nearly a serious disaster for FOSS, in part because the Artistic license was vulnerable to attack, and the FOSS lawyers had to do a lot of work to get this to come out the right way. Going forward, we need to make sure we avoid obvious pitfalls in license language, and licenses that don't meet a set bar should not be approved.

This just in: the United States Court of Appeals for the Federal Circuit has just overturned [PDF] the lower court's decision in Jacobsen v. Katzer, the model train case.

The MIT Students have now filed their response to the Massachusetts Bay Transportation Authority's Motion to Modify the terms of the temporary restraining order it got from the court. There is also a letter from a group of computer science professors and computer scientists in support, along with two declarations and exhibits. They ask that the court reconsider and vacate the TRO to allow the students to publish their research for three reasons, which could be summed up as on the basis of "changed facts and manifest errors of law": (1) the order is an unconstitutional prior restraint on First Amendment protected speech about their academic research, (2) the Computer Fraud and Abuse Act does not prohibit communication of information about computers or computer security, and (3) the MBTA's publication of the defendants' research and presentation slides undermines its claim to injunctive relief. Illustrating the First Amendment issue, EFF, which is representing the students, points out in this statement by Kurt Opsahl that while the MBTA has been issuing statements to the media about the research, the students are unable to speak in response under the original TRO.

SCO has filed a motion [PDF] asking for a third extension of the exclusivity period. It wants 105 days after any final judgment is entered in the SCO v. Novell litigation. Since at the moment no one knows when a final judgment will be filed, it's a request for an open-ended extension. The hearing on this motion is set for September 16. SCO's reasons for its motion are several: first, that Novell is asking for more money than SCO thinks is reasonable in pre-judgment interest in the Utah litigation. That means the issue may have to be worked out in motions to the Utah court. It wants to know, and its potential backers do too, SCO says, exactly how much SCO owes and also how long it will take for the appeal to be filed. Until there is a final judgment, SCO can't file a notice of appeal. Novell has raised the issue in Utah that until the Swiss arbitration is decided, some claims in the litigation are still pending, and so a final decision is not possible yet. So that may have to be litigated too. Then the bankruptcy court has to decide about the constructive trust. According to SCO, the Stephen Norris deal is still being worked on, though they say now it might be either a buyout or a loan after all, and it hints at others potentially interested in funding SCO. But they want some clarity on when the appeal will be entered. Does that make sense to you? After all, SCO mentions a figure of potential claims against SCO in the amount of $96 million, above and beyond what it owes Novell. Should it get an extension until all the claims against SCO are decided? Now, *that* would be clarity. Why is an interest calculation on $3 million or so and a date for a filed notice of appeal enough to give potential backers a feeling of finality, with so much to come? There is a much bigger cloud waiting on the horizon than anything Novell ever represented. Anyway, SCO asks for an extension of time to file a reorganization plan, setting a new deadline at 45 days after a final judgment is filed in the SCO v. Novell matter, and then 60 days after that to "seek approval from impaired classes of such a plan."

The lawyers for the Massachusetts Bay Transportation Authority have just filed a motion asking for a modification of the terms, but not the duration, of the temporary restraining order [PDF] it won against the MIT students who had wanted to present a security paper at DEFCON on vulnerabilities in Boston transit cards. I'll show you the motion. It asks that the terms be altered to "correct any public or intra-party misperception concerning the TRO and the MBTA's goals in this matter" so we don't get the impression they are trying to act unConstitutionally by interfering in free speech. I'd say the cluetrain is nearing the station. It's a culture clash thing, from the looks of it, like maybe the MBTA folks thought they were dealing with script kiddies, and now they realize that others view this paper as authentic security research, which is mostly already out there anyway. This Declaration of Eric Johanson [PDF], a security consultant for the MIT students, might be what started the plaintiffs realizing this was a horse of a different color. Johanson states that it is his professional opinion that the information in the slides of the MIT presentation are based on public information, and that the key information needed to compromise the security of the MBTA's system is excluded from the presentation. [ Update: EFF says it will appeal the TRO.] But here's the kicker. The MBTA filed the students' report as an exhibit with PACER, which included the confidential information the students had deliberately excluded from their presentation, thus making it publicly available to the world. The students' attorney, Jennifer Gralnik, writes to the MBTA suggesting they urgently remove it. Which they have, from all I see. You can read her email in this exhibit [PDF] on the last two pages.

Groklaw member ExcludedMiddle tells us: Hey folks. I just thought that you'd like to know that I have become a new author of a book published by St. Martin's Press/Macmillan. I've been on here since the beginning, and I just wanted to share, partially because the book is probably of interest to you guys. Lawrence Lessig was an inspiration for the book, and after sending him a copy, he liked it so much that he wrote a blurb for it. It was also covered by the Creative Commons in a recent blog entry. The book is the Indie Band Survival Guide, and is available at Amazon, and all of the major bookstores. It tells musicians exactly how to succeed on their own, entirely without music labels. In the book, I advocate the use of Creative Commons licenses, argue that file sharing is an excellent way to get your music heard, and talk about the balance between copyright and commerce, which I know are topics dear to Groklaw denizens.

It will not surprise you to learn that there has been another postponement of the hearing on SCO's desire to give some unearned money to York Capital Management. If you recall, SCO claimed it felt a moral impulse to pay them even though it doesn't have to. The new date in bankruptcy court for that hearing will be September 16. Or never. If I were SCO, I wouldn't want to have to argue that crazy motion either. So, what I'd do is keep postponing until I could file a reorganization plan first, and then after I got out of bankruptcy I could give them whatever I wanted to, without oversight. If I couldn't postpone that long, I'd tell the court I'd dropped the motion. Then I'd pay them later, for whatever the real reason is. Why SCO wants to pay them, and who are they representing anyway, is the real story, I would think. What hold does York, or whoever they are representing, have over SCO? Personally, I discount morals. Happily, I'm not SCO, so I don't have to think up junk like that or worry my pretty little head over it. Poor SCO. Apparently, they do have to.

In case SCO tries to resurrect any methods and concepts claims to OpenServer or UnixWare, let me remind the world that beginning in 1996, they gave that away themselves when they offered Unix enthusiasts free licenses to what they called Free-OpenServer. Here's the announcement as PDF, "SCO Provides FREE* UNIX System Licenses to Students, Educators and UNIX Enthusiasts around the World". Buh-bye methods and concepts claims. At a minimum. And guess what they threw in? A free software development kit: The SCO OpenServer Development system is comprised of a set of state-of-the-art compilers, debuggers, application programming interfaces (APIs), and libraries needed to develop applications. The SCO OpenServer Development System can also be augmented by over 200 third-party development tools to create the most robust and efficient development environment. No kidding? APIs and libraries so you could develop applications, eh? SCOsource is dealt yet another blow. Well. Maybe a kick. I don't think it's still standing any more. Free-OpenServer. What a concept! Here's what else I think it means: that even if SCO did win a reversal on appeal, and the appeals court decided SCO did get all the copyrights under the 1995 APA, it still can't go after anybody for methods and concepts in any code that dates back before 1996 (and maybe later), and I have long believed that was the real dream.

I put this article from Law.com's Legal Technology page, "Commentary: The Penguin Doesn't Fly, Avoid Linux" in News Picks because I found it hilarious, in the Rob Enderle kind of way. But then I thought I'd look up the author on Google, and lo and behold, I find he said something that appears to be not exactly true. I'm not talking about the FUD stuff. I'm talking about his assertion that he couldn't get any answers to a request for help from Mandriva Forum:And, Linux proponents claim that if there is any kind of problem, or a viral threat or other OS disaster, there is an army of Linux programmers standing by to remedy the situation. But these claims do not reflect my experience. I tried to install Puppy Linux without success -- and my e-mails to the developers were ignored. Ark Linux developers could not explain why my computer's Wi-Fi card didn't work. The Ubuntu forum could not explain why a DVD player would not eject. The Mandriva support site did not respond to queries at all. And it took a tech support person from Wine, a program supposed to allow Windows applications to run on Linux computers, 6 days to finally respond to my requests for help; which he was unable to resolve. I know. I love that touch about a viral threat in Linux. Hilarious. But look what I just found: two pages of responses to a request for help from someone with his name. If it's the same individual, it's not so funny now.

I have some screenshots from an old Caldera OpenLinux Lite CD that a member still had in his possession to show you. They disprove certain allegations SCO has made regarding Linux, I think, in the IBM litigation. For example, SCO claimed that it never released anything under the GPL. And it tried to allege that some headers and other features were their property and that Linux infringes them. I will show you differently. Interestingly, the CD's Credits file mentions Ralph Yarro, among others. The copyright information states that they used Red Hat's Linux and then added some tweaks of their own to it, and they list files and applications that were not under the GPL, and none of the files in the screenshots are listed as excluded. All the rest, they say, were distributed under the GPL. The Announce file is particularly interesting, because it mentions ELF directly, and that speaks to whether SCO knew what they were distributing under the GPL. I asked Dr Stupid to look at the screenshots and tell me what it means to him, and here's what he told me:Well, it's confirmatory evidence that Caldera shipped errno and STREAMS under the GPL, in particular that they took the conscious decision to include STREAMS (since Red Hat didn't.) The ANNOUNCE file, where they specifically point out ELF support, is useful as it shows that inclusion of elf support was not accidental. And at the time, it was still just about possible to create a Linux system that only used a.out (i.e. to remove ELF support) although it would have been a lot of work if you were starting with a copy of Red Hat. So, let me show you the screenshots now.

The United States Court of Appeals for the Tenth Circuit, Office of the Clerk, has sent a letter reminding the individual wishing to appeal the order denying him the right to intervene in the SCO v. Novell case that there is a $450 fee to be paid to the US District Court within 30 days, or an application filed to proceed in forma pauperis, and giving futher instructions on how to avoid having the appeal tossed. They've seen this before, I expect, and likely they have a form letter. Here's the docket entry: 08/06/2008 547 - USCA Case Number Case Appealed to Tenth Case Number 08-4154 for 545 Notice of Appeal filed by Jonathan Lee Riches. (jmr) (Entered: 08/06/2008)

The guy who tried to intervene from prison in SCO v. Novell and was denied has filed a notice of appeal. That means the court clerk has to send the entire docket to the appeals court with his notice and the original order. I started to feel a measure of indignation, but then I realized that I feel pretty much the same way about SCO tying up the courts with what I view as nonsense. So what can you do? Some folks will do performance art, some will misuse the courts for anticompetitive reasons, etc. It is what it is. The court has already sent the necessary papers along. Also, the court has granted Novell an extension of time to file a proposed final judgment and pre-judgment interest submission, which the parties had stipulated to. The new date is August 22. The parties had jointly made the request for more time, because they are negotiating to try to resolve some remaining issues between them, including one big one -- should this be a final judgment prior to the arbitration and the constructive trust being decided?