The joys of SCO

The joys of SCO

Summary: IBM's loss will be far more consequential than was ever contemplated in the original filings.

TOPICS: Open Source
SCO's basic case started out simple. SCO said that IBM had infringed on the terms of its AT&T source code licenses for Unix by allowing derivative works to enter the public domain via Linux, that they had drawn the problem to IBM's attention as part of the license renewal process, and that IBM had refused to recognize the problem or alter its behavior. In response SCO terminated the contract, If SCO survives long enough to make it in court, IBM will lose. thereby forcing IBM to stop selling AIX and other Unix derived products, and asked a court first to enforce that order and secondly to consider fair compensation.

At the time this looked like a negotiating tactic: using the court the get IBM's senior people to pay attention to an internal problem. To my astonishment, however, IBM choose to deny SCO's claim, embarking on a costly, and high risk, legal process rather than settlement negotiations.

I don't pretend to understand American civil law, but it seems to me that the basic SCO claim is an absolute no brainer: one line of AT&T code in Linux makes the case and the original 390 port done in Germany and released through SuSe was chock full of things that seem to have benefited rather directly from work done under the AT&T shelter by engineers from Sun, NCR, Motorola, and AT&T when the BSD/SysV union that gave rise to Solaris was co-developed for PowerPC.

Unfortunately IBM's decision to circle the wagons led to a rapid escalation in claims on both sides. Thus SCO hired a well known east coast law firm on contingency plus fees and expenses, and the subsequent filings raised the stakes considerably by alleging that IBM's senior management was complicit in this process, issuing uninformed commentaries on Unix history, and then demanding licensing fees from the general Linux community in a rather naive attempt to establish a fair market value for the formerly protected code and ideas.

Those mistakes allowed IBM to rally the Linux community against SCO, empowered anti-SCO sites like groklaw, and created an intensely negative emotional atmosphere in which hardly anyone noticed that IBM's actual legal strategy consists of a large red herring (the dynix file system code; something SCO's lawyers bought hook, line, and sinker) coupled with alternately stonewalling, nitpicking, and drowning SCO in paper.

Four years later some clarity is emerging. SCO's lawyers are responding to IBM's strategy by broadening their case from code to the ideas embedded in that code. At the nit picking level, for example, if there are four equally good ways to handle a high/low switch and IBM's original code used the same one AT&T did, it may be reasonable to believe that the guy who nominally wrote the code asked the AIX maintainer in the next cubicle how AT&T handled it. At the more general level there may be a number of reasonable ways to do kernel table management, but if only the one invented at AT&T and uniquely embedded in the licensed AT&T code appears in IBM's product and results in other significant simplifications that also appear in the kernel, then the balance of probability falls on SCO's side.

Indeed if SCO can find even a couple of compelling examples like this, particularly at the level of significant design and coding optimizations, the likelihood of independent invention starts to approach zero.

The trap for IBM here is that SCO can argue that copying at the level of design ideas indicates management complicity because, at the very least, the product development managers would have had to sign off on both design and code. And if the court buys the argument, this means that IBM's loss will be far more consequential than was ever contemplated in the original filings.

Speaking personally I see SCO as the aggrieved party here - but I think their real complaint today should be as much against their own lawyers as against IBM. The basic case, however, was and is a no brainer, and should have been settled without the damage to SCO's reputation and ability to do business we've seen so far. Thus the bottom line is simple: if SCO survives long enough to make it in court, IBM will lose.

As I've said before, there is a natural basis for a settlement here under which SCO would drop the case and IBM would pay SCO to release all of its remaining rights in Unix code to the public -allowing IBM to leave the field in triumph after having achieved something of value to the Linux community.

Most people, of course, deny SCO has a case and see no value in open sourcing the AT&T product set. Now, if you're in that camp, let me ask you two questions: first, from whom are you getting your information? and, secondly, if you think open sourcing AT&T's code now would produce no change in Linux or any other major Unix variant, I'd guess that you'd be right; but have you considered that you're making SCO's case for them?

Topic: Open Source

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  • Let the flames begin!

    I think I'll sit this one out.
    Erik Engbrecht
    • Smart choice (NT)

  • SCOs Canadian connection

    You do realize that SCO would not have been able to do anything without financial backing - from a Canadian bank. Cunucks - they're all the same, eh? :)
    Roger Ramjet
    • Don't forget Baystar also

      And the Microsoft connection.
      Edward Meyers
      • Oh yeah, and Sun too

        Sun "piled on" by actually buying a license from SCO (when it already had a license for UNIX). Hmm, M$ and Sun BOTH purchased a license for something they won't ever need/use.
        Roger Ramjet
  • AT&T and history

    The history of who sold what to who is quite a tangled mess in this case. The ONLY thing that is clear is that YOUR pet corporation Sun, purchased a complete license for UNIX before all the bifurcating of Novell, SCO (Santa Cruz), Caldera, S.C.O. That means that ONLY Sun is "immune" from this fallout (INCLUDING OpenSolaris) - and Linux and other Unixes are NOT.

    You cannot remain unbiased here. The more damage done by SCO - the better the market prospects are for Sun (and Canada). I can fully understand why you back SCO and find fault with IBMs defense.
    Roger Ramjet
    • Good point

      never thought about it that way.
    • What's the point with Canada?

      I don't know why you keep referring to Canada. Is it something I don't know or you're just not up to date? The Royal Bank of Canada put in 40% of the $50 million that BayStar invested in SCO (the move was mostly initiated by MS, but I'll digress). However, they've pulled out of that deal years ago, leaving BayStar as the single party of that investment. Then even BayStar sold the remaining shares back to SCO (at a loss to top it all off).

      Please feel free to correct me if I'm wrong.
  • The SCO case

    Was in the begining and is now, that IBM developed things for AIX which contain no AT&T SYSV code which IBM dveloped independant of AIX but IBM added latter to AIX which IBM latter gave to Linux.

    Things like JFS and NUMA. This is besides the fact that IBM had a clarification on it's AT&T license that things that IBM wrote belonged to IBM and the $Echo newesletter clarified that things that were developed by the Unix companies that licensed UNIX owned the things that didn't contain AT&T code and they could do with those things what they want.

    SCO can not or will not provide a court ordered list with specfic lines of SYS V code that IBM contributed to Linux by line number that contains Unix code, they can't as it isn't there. Instead the try to argue that when IBM bought DYNIX that DYNIX didn't have the ammendment or clarification that IBM had under AIX and thus were bound by the DYNIX license, all this despite the $Echo newsletter.

    The SCO case is even more complicted than this becuase Novell aperently may still own the copyrights to UNIX and not SCO. The SCO V Novell case is much much more interesting. Novell also retained the right to waive any action against any existing UNIX customer, which Novell told SCO to waive any action against IBM for AIX and told them not to revoke IBM's unrevokable license for AIX.
    Edward Meyers
  • SCO Group/Caldera DID open source Unix!

    The SCO Group, back when they were Caldera, effectively did end up [i]open sourcing the AT&T product set[/i], at least the kernel part for which SCO is suing IBM.

    In January 2002, Caldera released the source code to the original AT&T Unix versions under the BSD license.

    Caldera's release included the source code for version 7 and V32, from which was spawned most of modern Unix varients ( not including Linux) which are in use today.

    As for SCO's lawsuits, back in June [b]2003[/b], I outlined exactly how the case has proceeded to this present day.

    SCO is toast.

    From March 2004 : A plea for relief from Microsoft's escalating anti-competitive tactics.
    [i]The SCO Group has entered into a series of essentially inherently flawed lawsuits and fraudulent license claims against users of the Linux operating system. Since 1994, Caldera International and the Santa Cruz Operation have been accepting, profiting from and distributing software developed by hundreds of independent developers under the terms of the GPL and LGPL license. The SCO Group has failed to put forward any sustainable legal theory why it should not abide by the terms of the GPL license. Detailed investigation into other facts and evidence which regularly conflict with the SCO Group's various legal claims, filing, press and public statements, raises serous questions which can no longer be explained away by a lack of competence in either the SCO Group's CEOs or the SCO Group's legal representation.[/i]
    David Mohring
  • Sigh.

    Paul, you are unique in getting just about everything you write wrong in fundamental ways. It must be a ploy to generate hits because nobody could be as clueless as you pretend to be.

    In this particular case SCO is toast. Far from being "anti-SCO" groklaw does an excellent job of cataloging just how much of a nothing case SCO has here.

    They have an excellent archive of the case history. Did you know, for example, SCO has amended their complaint three different times?

    Off the top of my head SCO has said the case was about:

    1. Copyright infringement
    2. Trade secrets
    3. Concepts

    Darl McBride boasted they had "mountains" of infringing code, yet the few times they trotted something out (usually redacted in some brain-damaged way) it took hours for the open-source folks to show the code was in fact legally included.

    At one point SCO was claiming POSIX compliant header files as protected code!

    IBM (in my opinion) considered their reputation damaged by the allegations and are in the process of turning SCO into the legal equivalent of a radioactive crater.

    To this day SCO has produced *no* code despite 3 different direct orders from the court to do so. As the case was originally about infringing code and SCO was trumpeting the fact they had millions of lines of it, surely they could have produced a single line? Something?

    Congratulations Paul, you got another hit for your talkback. But that's all you've got.
    • Anti.

      It's possible to be opposed to an idea or organization while remaining reasonable.

      "Far from being 'anti-SCO' groklaw does an excellent job of cataloging just how much of a nothing case SCO has here."

      Groklaw can do an "excellent job" and still be anti-SCO.

      You may have seen so many unsupported anti-Microsoft statements here that you've become cynical about whether opponents to anything can be reasonable.
      Anton Philidor
  • WOW!

    Let's forget for a minute that after over 3 years and multiple court orders, SCO has yet to produce ONE single line of copyrighted code. Let's also forget that SCO has yet to prove they own ANY copyrights on SRvX. Let's forget that SCO also has to prove they have standing to sue after Novell sent them a C&D letter. Let's forget that EVERYONE who was actually involved in writing the agreements between ATT and IBM and Sequent absolutely and completely disagrees with SCO interpretation of the contract. Let's forget ALL that. Lets all pretend it doesnt exist.

    And THEN, MAYBE SCO stands a chance of winning.

    What I and many others will not forget, is just how clueless you've been throught this entire process. NOBODY is THAT stupid, you really have to be trying hard...
  • No 'there' there...

    They haven't made clear what the case was: copyrights, trade secrets or patents. They haven't produced any actual code to back up their claims, despite multiple demands from the court to do so. Their ownership of the copyrights from Novell by way of the old Santa Cruz Operation is in question. They keep asking for more & more source from IBM, and so far have just handwaved and said "it's in there *somewhere*, trust us".

    This looks more & more like a failed scam to file suit on a deep-pocketed company for a quick payoff. IBM called their bluff and all SCO's managed since is delay and misdirection. If they actually *HAD* anything you think they'd have waited this long, or that IBM wouldn't settle to clear the matter up? As it is, SCO's likely to become another smoking crater on the IT landscape in short order.
  • What infringing code?

    So, then, if their case is so slam-dunk, what lines of code in Linux are infringing?

    Please tell us? Pretty please?

    SCOX would desperately love to know.
  • You have *not* been paying attention

    Paul, go get a stack of $100.00 bills and start looking around for some clues.

    The reason SCO is not frantically talking about "METHODS AND CONCEPTS!!!" is because there is no AT&T code which IBM took from AIX or Dynix and place in or gave to Linux. None, zip, zilch, nada and zero.

    AND SCO would be hard pressed to release UNIX as they do not own it, despite (years ago) saying they were the owner of UNIX and now, this statement is completely gone from their web site and SEC filings. SCO is and has been lying about their ownership for quite some time now.

    There is so much wrong with your article, I would be writing pages to correct, but won't. Will handle one thing though:

    You stated "...IBM had infringed on the terms of its AT&T source code licenses for Unix by allowing derivative works to enter the public domain via Linux...." Not true. SCOX is alledging that IBM contributed *IBMS OWN CODE*, which IBM wrote and owns the copyright to, to Linux. Nothing about the contributions made make the code "public domain", IBM is still the copyright holder. Before you go spouting off about "public domain", you should actually get a clue, legally, what that term means in regards to copyright.

    As for the rest of your article, you might want to actually read all available filings on the case and SCO vs. Novell, RedHat vs. SCO and the filings in SCO vs. AutoZone and SCO vs. DC. Educate yourself on copyright, trademark, trade secret and patent law and, if you can then stand to look at yourself in a mirror, write a correction to this article and an apology to IBM.
    • Rudy .. Ha.s been paying attention

      He's just stirring the pot.

    • They are?

      [i]You stated "...IBM had infringed on the terms of its AT&T source code licenses for Unix by allowing derivative works to enter the public domain via Linux...." Not true. SCOX is alledging that IBM contributed *IBMS OWN CODE*, which IBM wrote and owns the copyright to, to Linux.[/i]

      That's not at all clear. SCOX is [b]still[/b] being coy about stating precisely what their claims really are. The current motion to strike 2/3 of their "allegedly misused materials" is based in large part on the fact that their description of those "materials" is so vague that nobody -- IBM and the Court included -- can figure out what they really are.

      SCOX is apparently avoiding making exactly the claim that you mention because if they were to say so in so many words, IBM could get the Court to clarify whether that is in fact forbidden behavior, and SCOX (for whatever reason) prefers to keep that question open.
      Yagotta B. Kidding
  • The evil empire is IBM

    Bill Gates isnt Darth Vader.
    The evil empire is IBM. It is IBM who have no respect for the IP except when it comes to their own.

    Its IBM that has done a poor job of software. In the past before the 80's, they did an awesome job but somewhere after they 80's they just lost the mojo.

    To counter Microsoft, they thought they would hit Microsoft where it hurts. Unfortunately IBM's actions are coming to bite them in the rear.

    They gave up on their own OS and made Linux their OS (nothing wrong with that but it clearly shows their belief in their own software). This move definitly hurt other *nix vendors more than it hurt Microsoft. Now OSS is coming to haunt IBM. WebSphere which had $3 billion in sales will soon have its best days behind. Look forward to the next victim which could be DB/2. Lotus Notes is not making an traction in the market place and so no comment from me. Wonder what software assets IBM will have in the future.

    IBM plays more politics than doing good engineering. This is definitly the sign of a company in decline.
    • IBM is MS's biggest competitor

      IBM still sells all of its Operating Systems including AIX, of which it boasts increased sales.

      It is still also a major computing hardware company and put a lot of work into developing the Cell architecture with its partners, which runs the Sony PS3 and other specialised boxes some of which help the American defence forces.

      It got out of the PC business when it could see that market declining. The basic architecture model is over 20 years old, which in normal development cycles means it is due for replacement by something with 5 times the functionality.

      IBM tried to upgrade the desktop OS with OS2 and even change the hardware with the microchannel bus, but Wintel was too entrenched for it to succeed.

      This time they have created a hardware platform that can out perform an 8086 based architecture and can offer 5 times the functionality.

      Like IBM got MS to do with PC-DOS for the original PC, they have found another supplier for the OS, but this time they can participate in the development process based on meritous offerings without receiving rancour.

      Like everyone in the industry outside of Wintel, IBM knows it is time for radical changes to the personal computing device. Even the American Government accused MS of holding up development during the anti trust case, but did they do anything to rectify their fault? Just another series eye candy releases on the same tired old system is all we get.

      The Cell architecture that Big Blue is helping to develop holds the promise in its vector processing abilities of finally being able to offer users the missing parts of a "Model T" user computing device. Effective speech, 3D, and writing recognition.

      Those parts should have got here before 2000, so they are long overdue.

      In light of all this I can't agree that IBM is still the evil empire. I believe they changed sides when all the old market share at any cost oriented board was replaced during their loss years. Pity they educated MS before they retired.