SCO: finally, an opportunity to judge for yourself

SCO: finally, an opportunity to judge for yourself

Summary: a bunch of guys tasked to deliver Linux on the System390 had a tendency to ask themselves and some handy colleagues down the hall how some of the key problems weresolved for AIX. At the technical level that kind of behavior simply makes sense - unfortunately IBM had a contractwith AT&T and its successors that said they weren't allowed to release the result into the public domain

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TOPICS: Open Source
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There's something in SCO's most recent press releases and court filings that lets us, finally, check out some of the facts for ourselves.

Remember, however, that the basic claim is simply that IBM allowed some of its people to use their access to, or knowledge of, contractually protected Unix source code (included covered derivative works) as part of their contributions to Linux. Beyond that, everything else you've read on Groklaw and elsewhere is fundamentally immaterial -not because it hasn't seriously damaged SCO's prospects for staying in business or had a negative effect on the Linux community, but because it really doesn't have anything to do with the fundamentals of the case.

My vision of what happened is simple: a bunch of guys tasked to deliver Linux on the System 390 had a tendency to ask themselves and some handy colleagues down the hall how some of the key problems were solved for AIX. At the technical level that kind of behavior simply makes sense - unfortunately IBM had a contract with AT&T and its successors that said they weren't allowed to release the result into the public domain.

So why did IBM circle the wagons when caught instead of quietly ante-ing up the standard license continuation fee the way Microsoft did? I really have no fixed idea - but what I've heard is that some fairly senior managers were involved in an internal spat over an unauthorized Linux port to the 370 architecture and may therefore have had deep personal stakes in getting the politically correct version out of the Boeblingin skunk works fast.

Of course that was then, this is now, and things are pretty messy with the whole thing a combination of tar pit and third rail for anyone who doesn't toe the IBM line.

Last week, however, SCO finally offered the court some serious substantiation - or so they said. According to the News.com report by Stephen Shankland, the actual documents are sealed, but SCO claimed to have "identified 217 areas in which the company believes IBM or Sequent, a Unix server company IBM acquired, violated contracts under which SCO and its predecessors licensed the Unix operating system."

Here's more from that report:

 

"Some of these wrongful disclosures include areas such as an entire file management system; others are communications by IBM personnel working on Linux that resulted in enhancing Linux functionality by disclosing a method or concept from Unix technology," SCO said. "The numerosity and substantiality of the disclosures reflects the pervasive extent and sustained degree as to which IBM disclosed methods, concepts, and in many places, literal code, from Unix-derived technologies in order to enhance the ability of Linux to be used as a scalable and reliable operating system for business and as an alternative to proprietary Unix systems such as those licensed by SCO and others."

As I've said before, I think the Sequent thing may turn out to be a deliberate red herring hauled in front of SCO's lawyers as sucker bait but the resolution there will be based on analyzing contracts, not code.

For the main issue, it's the code that counts - but no one can really talk about the facts because those who have access to the AT&T materials aren't allowed to say anything, and those who don't, can't form an independent opinion. However: this latest SCO formulation -that "some infractions are communications by IBM personnel working on Linux that resulted in enhancing Linux functionality by disclosing a method or concept from Unix.." - breaks that logjam.

The reason is that much of the discussion going into the 2.4 kernel and the revisions made to it is publicly available. As a result, I'm looking for help in scanning through the files available: first looking for threads that reveal disconnects between what was in the 2.4 kernel and basic Linux design ideas or thinking, and then following up to see where the "interloper" ideas might have come from.

For example, this discussion from October of 2000 suggests that a key device for enabling direct I/O didn't really fit with core Linux programming ideas. Now, obviously, I don't have AIX 3.2 and later source to compare this to, but it seems like one of those dumbly implemented dumb ideas that made those products such a joy to work with.

There must be others -for example this one from 2003 (!) is interesting.

I imagine that there are probably lots of examples like this, and I'm not suggesting that their existence proves much - only that this kind of thing matches up to that particular line from SCO's press release and thus gives us our first real opportunity to research at least part of the claim ourselves.

So, if you're not busy right now... I'd like some help in locating and interpreting candidate threads from the 1998-2001 period. In particular, please look for stuff affecting things like write addresses in device drivers, hardware memory management on the PowerPC, page fault and VM management, and floating point processing.

Topic: Open Source

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  • Look Paul

    It's become clear from your recent postings that you would love to see Linux go away so that your beloved Solaris can magically proliferate. (clue to paul: it ain't gonna happen)

    We can't really see the code in question as presented to the court as evidence because it's under seal.

    There is reason for this. A couple of years ago at some function in Germany a few lines of code which SCO claimed "infringed" leaked. It was quickly shown to be not proprietary Unix code but public domain. There is a virtual army of people who are willing and able to trace any code SCO says "infringes" to it's true source. SCO fears this and this is why their "evidence" is under seal.

    Im sure that Solaris is a fine OS but your bias against Linux, despite your attempts to conceal it, are now known.
    Tim Patterson
  • Wait a Minute

    "Of course that was then, this is now, and things are pretty messy with the whole thing a combination of tar pit and third rail for anyone who doesn't toe the IBM line."

    IBM isn't suing anyone except through its countersuit with IBM.

    Also SCO claims that the Microsoft and SUN licenses are not Unix License in SCO v Novell, becuase if they were then SCO would have to send 95% of the funds to Novell per the Novell/SCO contract... BTW Novell is asking that that 95% be put into a trust bankrupting newSCO, in Novell's countersuiit, as they claim SCO is squandering those millions.

    All At&T contracts also were ammended so that anything that Unix licenses wrote on their own could be disclosed, this was clarified in a newsletter sent out by AT&T. Also the license claimed that anytyhing already disclosed was fair game- The 1994 settlement from USL v BSDi pretty much claims that even the set of "restricted" files methods and concepts had been disclosed. Also the POSIX and the Single Unix Specification, both maintained by the Open Group (as Novell didn't sell those to oldSCO, Santa Cruz Operations, hence newSCO, Caldera, couldn't buy them) pretty much disclose the methods and concepts of Unix and the Open Group is also working on the LSB (Linux Standard Base).

    Not to mention newSCO, Caldera, also disclosed these same methods and concepts in Linux as it was a Linux company and they continued to openly disclose these concepts by offering Linux Source Code, in which these methods and concepts were disclosed, from their servers under the GPL through May of 2005. Also Caldera themselves worked to improve Unix.

    Whole filesytems? Are they talking about JFS?? They have already posted those claims.

    Anyhow doesn't anyone find it odd that SCO filed this under seal but then sent the top page out to journalist??

    Also why is it under seal??? And will G2 sue to have it unsealed like they did with IBM documents?
    Edward Meyers
  • Do You Actually Understand this Case?

    Rather than dismissing groklaw I suggest you read www.groklaw.net If lawyers on both sides have admitted to using it as a resource then you should too. Also, its document archive of the case, coupled with the fact that US lawyers (retired and practising) not only subscribe to the site, but also write articles for the site, suggest that its legal opinion is taken more seriously than you suspect.

    You article is filled with unsubstantiated innuendo, viz:

    " My vision of what happened is simple:.." [Your WHAT? Your vision? Is this like what Yoda has?]

    "So why did IBM circle the wagons when caught instead of quietly ante-ing up the standard license continuation fee the way Microsoft did? I really have no fixed idea - but what I've heard is.." [this would be flattered to be called hearsay]

    "..and things are pretty messy with the whole thing a combination of tar pit and third rail for anyone who doesn't toe the IBM line" [Proof?]

    "I imagine that there are probably lots of examples like this" [Is this like your vision?]

    You also have not admitted the "whole truth" in this article. You have ignored the fact that there is another court case Novell Vs. SCO where the ownership of the copyrights, as claimed by SCO, are in dispute.

    I started to spend my lunch hour writing corrections to every "fact" that you have stated; but it became so burdensome that I call only critique this article by using a famous statement from Wolfgang Pauli:

    <B>"This isn't right. This isn't even wrong."</B>

    The banjo
    BanjoPaterson
    • No -just the facts

      I do not understand the case as brought by Boise (SP?) et al; in fact I'll go beyond that: as a layman I find their behavior so baffling that I'm willing to predict they'll eventually be widely reviled for their role in this.

      Sadly, however, "the case" doesn't have an awful lot to do with reality anymore -there are encrustations of all kinds -legal strategy being only one of several- obscuring the basic reality of what happened and who did what to whom.

      groklaw is a very interesting site - but it's extremely one sided with the whoops and howls of derision greeting anything and anyone even remotely interpretable as pro-sco a discredit to everyone involved - including you.

      Now if you want to do something positive - read the blog again and followup as requested instead of ranting at me.
      murph_z
      • Banjo's "Rant" is sound

        Since you complain that Banjo is "ranting", I will expand on just one of his points:

        "So why did IBM circle the wagons when caught instead of quietly ante-ing up the standard license continuation fee the way Microsoft did?"

        Well, Paul, it's because they (IBM) have an IRREVOCABLE license to UNIX. They don't need any sort of "standard license continuation fee", not last year, not now, not ever.

        WTF are you talking about?

        Besides, the characteristics of this Microsoft "license" are in dispute as well: If it's a UNIX license, then Novell probably deserves to be paid 95% of the proceeds immediately (Novell has asked that this money to be put into an escrow account, before SCO bleeds it all away on legal fees, executive stock options, and other expenses.) But if it's not a UNIX license, then is it just a pile of money funnelled from MS to assist SCO/Caldera in attacking Linux? Antitrust questions ensue.

        And, if the money should be escrowed for Novell, but SCO would go broke before SCO vs. IBM can be concluded unless they have access to this money, is justice better served by (1) protecting Novell's money before SCO/Caldera finishes pissing it all away, or by (2) allowing SCO/Caldera to complete their lawsuit?

        I agree that you do not understand this case. If you don't want your BLOG to be "ranted" at, then you need to learn about SCO vs. IBM and it's interlocking complications before shooting off your mouth.
        Rick S._z
        • Dear Rick:

          Not everything you read on groklaw is actually true - including all of your assertions here.
          murph_z
          • What kind of reply is that?

            What assertion is wrong? That IBM has an irrevocable license? You're being vague and offering no form of refutation except to tell him he's wrong and Groklaw does not always tell the truth?

            As stated in the orignal thread by Banjo you ignore the fact that SCO's ownership is in doubt as being argued in the Novell vs. SCO case? Or are you telling everyone they should ASSUME SCO owns "something"?

            You state in another thread that
            Now there are actual legal documents that state what IBM created from their own work is their to disseminate as they wish. That kinda blows your getting help from someone down the hall theory out of the water.

            Now if you can show a document that states anything that IBM created and put into Linux belongs to SCO put it up. But I'd be surprised if you do. If you cannot then asking your readers to go look at the code and judge for themselves seems to be a waste of time.


            You tell everyone to base an opinion on fact yet you are silent about the archive of documents on Groklaw. Wouldn't it be easier to point to that pull out a document like AT&T's $echo letter where
            AT&T is very clear about what licensee's can do with the code they develop on their own?

            If you told everyone to read that and put into context that the original licensor gave the developers the freedom to develop for themselves than maybe going and doing code searches would be shown to be a fruitless task.

            Now I'm sure you will do 1 of 2 things.
            1) Place a blank label and say my assertions are wrong without any solid and verifiable explanation
            2) Ignore my post completely, in your head lable me as some "open-source" zealot unwilling to open their mind to SCO's position.

            I'm ASKING for something solid to give me a reason why I should chnge my mind. Looking through code seems like a worthless task since it hasn't been proven it needs to be done.

            Mark
            ScoundrelNY
  • Really?

    So, if this is so clear and simple, why did SCO have to change their case 3 times? Why did it take them over 3 years to find the code? Why is the code under seal? Why hasn't anyone on the planet been able to find it yet?

    And in order to have a case, any case, especially one that fits your description. They have to find exactly who wrote the original code, line by line. Then they have to identify who exactly held the original copyrights to those specific lines of code, then they have to trace the legal documents transferring the copyrights to those lines of code thruout it's entire history all the way to SCO. Because if anywhere in the history, they're missing any step, then they cannot legally claim ownership of that code. And without clear ownership of the lines of code, they lack standing to sue anyone over it's use, copy or redistribution. You can't sue someone for modifying and redistributing code that isn't yours to begin with.

    So far, it seems very very doubtfull that SCO has the necessary documentation to show legal standing to sue. In reality, a lot of experts agree that there is a very strong possibility that nobody can claim true ownership of any code in Unix. It's history is just too confusing to find the true owners, which actually makes it public domain. A lot of people agree that this is why BSD and ATT came to an agreement, nobody wanted to have to go through the work of identifying the copyrights only to find out in the end that it wasn't possible and thus loosing rights to license and charge money.

    PLUS, I'll put the ATT side letter, clarifying allowed use of "homegrowm" code to all ATT licensees, up against SCO's claims any day...

    Thanks.
    beaner11119
    • it's the contract ...

      Did you read the blog? if so you should have noticed what it was about (an opportunity - the first one- to see for yourself) the reason people have't published the code (it's in the contract) and what you can now do about it - look for inappropriate communications.
      murph_z
      • But if's the code

        is in Linux, it is already published. If you can't point to code in Linux, then there is no case. So why the seal, at so far as Linux is concerned? There is nothing to be revealed.
        mosborne
        • Because you can't publish at&T code

          Suppose this bit from Linux:

          current->tss.fprs[R1].ff = -current->tss.fprs[R1].ff

          came directly from SysVR4. (It does not).

          You could publish it as from Linux, but ascribing it to AIX source would violate the contract because then you would be publically providing information about secret code.
          murph_z
          • The Contract Was Modified

            AT&T Lawyers even admitted such in depositions, it was also published as clarification in the AT&T $Echo Newsletter.

            If that portion of AIX was developed by IBM and not derived from System V Code then IBM could disclose it. The Sequent thing is not a red hearing by IBM but rather one from SCO. SCO claims Sequent didn't get that modification to it's license.

            SCO is claiming anything that ever touched UNIX, Like JFS and NUMA, even though originally developed for OS2 and ported to UNIX belongs to them as UNIX. They posted this before but as this is filing is sealed we can't be for sure that this is what they are claiming here, but from SCO's press release we can infer they are claiming this again- which is why it is probably sealed.

            Also you are confusing Trade Secret with copyright. SCO is claiming Trade Secret, which doesn't go into the Public Domain and could cover Methods and Concepts where as copyright can not cover methods and concepts. Under Trade Secrecy something is either disclosed or not disclosed to the public. If it is disclosed already then it gets no protection.

            With System V almost all methods and concepts have already been disclosed and have been for years. The IBM workers would just need to get the Lions book http://en.wikipedia.org/wiki/Lions'_Commentary_on_UNIX_6th_Edition,_with_Source_Code or a latter book to see how it works. They could also get the Single Unix Specification, freely available and searchable without a NDA, from the Open Group's website.
            Edward Meyers
      • Is there a smoking gun?

        [i]look for inappropriate communications[/i]

        Do we have an ex-IBMer who has admit to inappropriate communications? Is there a smoking gun? Or is this a "you know, I picture it going down like this"?

        Given that SCO's comments earlier on were for [b]1000's[/b] of lines of code misappropriated, I think this is getting a bit weak.
        __howard__
        • I believe so

          Actually, I believe there is smoking gun - the question for IBM, of course, is whether SCO has it.

          On the other hand, the kinds of communication we're talking about here aren't going to come to much - my point is simply that this is the first part of the case you and I can go test for ourselves -something you'd think open sources would want to do.
          murph_z
  • AT&T and Unix Derivitives

    A long time ago, in a galaxt far ... no wait that was a different story. Anyway AT&T has published a newsletter which "specifically" stated that all derivatives of the code developed by companys such as IBM were there own and NOT owned/ controlled or copyrighted by AT&T. 'Nuff said.
    pfusco9
  • IBM was caught?

    You said:

    "So why did IBM circle the wagons when caught ..."

    I say:

    IBM was caught? Caught doing what? What an amazingly arrogant comment ... I guess we know what side of your toast is buttered.

    You said:

    "but what I've heard is that some fairly senior managers were involved in an internal spat over an unauthorized Linux port to the 370 architecture"

    I say:

    You don't have the balls to tell us your source for that statement. Or you will dissemble about "anonymous sources"?

    You said:

    "...finally, an opportunity to judge for yourself."

    I say:

    What? The data submitted by SCO is under seal! Other than SCO's self-serving statement about it, what is there for me to judge?? And, based on several years of outright lies from SCO, why should I believe any of it? So why do you?

    Bill Graham
    bill.spam@at@pobox.com
    joe7pak
    • Dear bill:

      Yes - or perhaps you could read the blog before responding to it?
      murph_z
      • How do you

        deal with the fact that SCO themselves released any and all methods, concepts, and code that they might have owned (if any) under the GPL when they distributed the their version of the linux kernel? If they didn't perform due diligence before releasing it, so sorry, so sad.
        mosborne
  • competition

    Linux is an imitation. If imitations are allowed to win then where is the innovation going to come from.
    If immitations are allowed to compete then they must compete on the same footing and not have
    i) rules favoring them with claims that OSS is ....
    ii) false propaganda that OSS is by the people

    Competition for Windows should come from Unix and not from some cheap imitation called Linux and other OSS.
    zzz1234567890
    • not to mention patents

      that OSS can violate patents because ... (no reason is valid for violating a patent).

      Also the companies like IBM which have said that they donate 500 patents to OSS is just a marketing ploy to get favor. Its just branding. If IBM is really serious about donating patents to OSS then let them make DB2, Websphere and also make the PowerPC designs available to all.
      zzz1234567890