Inside the Linux arcana

Inside the Linux arcana

Summary: Did a 1994 agreement with SCO hand Sun a smoking gun?

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TOPICS: Tech Industry
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If the SCO Group has any hope of prevailing in its core cases with Novell and IBM, those hopes are pinned on the following findings sequentially falling into place: establishing what Unix intellectual property (IP) it owns, to what extent it owns the IP (the Novell case may prove that it's shared in some way), what enforceable rights the company is entitled to by virtue of that ownership, and then how those rights may have been violated.

Considering all the chips that must fall in SCO's favour, and the order in which they must fall, the company has several milestones to get past before it can begin singing, "we will, we will rock you." It's a slippery slope, and the legal experts I've interviewed agree that the tipping point may reside in a sealed settlement to a 1992 case that was brought against both the University of California at Berkeley and Berkeley Systems Design (BSDi) by Unix Systems Laboratories (USL), an AT&T spinoff of which AT&T was still the majority stakeholder.

Although the settlement is sealed, one of the most widely held beliefs about it is that it privately acknowledges a significant dilution of AT&T's copyrights and trademarks because of the contributions to Unix that were made by UC Berkeley. Should the settlement be unsealed and the language proven to undermine the integrity of the SCO's IP claims, SCO's case could be significantly weakened - if not finished.

In addition, to the same extent that the sealed settlement may call into question the integrity of the IP in question, it could also turn out that a 1994 agreement between Sun and USL (very shortly after USL was acquired by Novell) holds more evidence of the same sort of IP dilution. It's just a hypothesis at this point, but it could turn out to be a powerful "smoking gun" that influences the outcome of the various suits brought by SCO. Before further addressing the issues of sealed documents and potential secret deals, it's useful to outline current events and to go over some background history.

The cases have a lot of milestones and, as indicated by the orders issued two weeks ago by US District Court (Utah) Magistrate Judge Brooke Wells, those milestones may not appear to follow the logical order that I have just described. As part of the due diligence needed for the case against IBM to proceed, SCO must show the court a smoking gun -- Unix-related code from which Linux was improperly developed or derived and memos from IBM executives that indicate complicity with, if not authority over, certain Linux development decisions. If the judge were to see enough smoke emanating from the gun's barrel to proceed with the case, the pendulum will have swung in SCO's direction, but it does little more than guarantee that the company will get its day in court.

Topic: Tech Industry

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6 comments
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  • Excellent column. Well written, informative, and timely.
    anonymous
  • Long winded and pointless. First of all the SCO case against IBM is a copyright case. Copyright protects expressions of ideas not the ideas themselves. Even if Unix code owned by SCO were in the Linux kernel, SCO would have to identify it and it would be removed. End of story. Linux would proceed under the GPL.

    SCO's rights to Unix which the author spends so much time tracing are irrelevant to the issue unless SCO copyrighted code is in the Linux kernel. Which is yet to be proven and even if it is proven the above point applies.

    Then there is the additional fact that SCO has itself distributed the said code under the GPL thus placing it under the GPL.

    THere is no need for a long winded "analysis" of SCO's rights regarding Unix. We can assume from the outset that SCO has all the rights to Unix that it claims and it still would have no case against Linux.
    anonymous
  • Hmmmmmmmmm........

    A couple of issues the author left out -

    1) Sun holds bunch of options on SCO stock. So its interest in propping up SCO and its stock is more than just Linux hatred.

    2) Sun is being hurt by Linux & Red Hat in more areas than just big iron. Thier workstation and desktop market has been hurt badly by the fact that a $1,000 Linux box is 3x the machine than a 2-3K Sun.

    3) Sun's bonds just got rated as "junk" by the street and its stock is headed to the toilet.

    4) Sun plays with fire by helping SCO in any way, shape or form. People like me, those that buy systems, could extract much pain on them if we got evidence that Sun was helping them out.

    5) MOST IMPORTANTLY, the bit about Linux disappearing from the market place is just stupid (no offense). If the *&^$&! hit the fan IBM could still afford to buy SCO anytime it wished. SCO's stock is at $8.75 a share - down from greater than $20 a share last winter. It has 14.1 million shares outstanding so it could be had for 123 million. That's still pocket change for Big Blue. It could buy out SCO then use its real money to purchase SUN. Does anybody SERIOUSLY think IBM will let SCO or even Sun harm Linux? IBM has staked a good chunk of its future on Linux - it ain't going anywhere! They have the money and lawyers to keep Linux happy, well, and free!
    anonymous
  • Maybe this agreement explains the comment made by one of the SCO lawyers. I don't remember whether it was the hearing in December or February, but the lawyer representing SCO stated that Sun and HP were not guilty of violating their license agreements, even though SCO had not compared the Linux code to the source for either Solaris or HP-UX, at the same time he was attempting to argue that he could not point to code contributed illegally by IBM without full access to all AIX code. If Sun, and maybe HP, have different licenses with more expansive rights than those of IBM, then the lawyer would be able to correctly say that they had not violated their agreements, even though they have contributed to the Linux kernel.
    anonymous
  • Folsom, what are you thinking?

    1) Sun holds an option to buy SCO stock at $1.83. If SCO wins, SCO's stock will skyrocket, and Sun will make out like a bandit any way you cut it. If SCO loses, Sun will buy and hold 1% or more of SCO's stock - giving Sun at least some access to what's left of SCO's IP when SCO dies. For pennies. Sun wins again. Sun doesn't really have a specific interest in propping up SCO, ithey will be just as happy if SCO wins or loses.

    2) Sun has (and has always had) better hardware than RH or IBM. Sun's workstations that are now 10 years old still sell on EBAY for about the cost of a mid-range new Dell workstation. They're getting hurt because a $1000 Intel or AMD machine is almost as capable at 1/3rd the cost - NOT because an intel box is 3x the machine (OS isn't even a factor). With clustering and HA capabilities, Sun's longstanding reliability factor is offset by the cost. And I hate to shatter your rose colored glasses but the Sun OS is a better Unix than Linux, even today. It'll be 3 or 4 years still before Linux is capable of what Solaris can do at the mid and high end range.

    3) Huh. And they have 5.7 billion in the bank for R&D (they could survive for 3 more years without selling a thing), a whole new class of products out this year [that are pretty damn impressive] and have doubled thier stock price. That's a pretty nice toilet.

    4) Yeah... I'll bet they're pretty scared of some sysadmin in New Mexico.

    5) If SCO wins, their stock will be a far cry more than $8.75 a share. IBM will have to foot billions, probably upon billions - and that's after they pay the fines [5 billion if SCO as it's way]. And I'll tell you something - if SCO wins, and IBM does in fact foot the bill, after penalties and the increase in SCO's price (not to mention the revenue SCO would be generating on licences) it won't be to protect Linux or keep it free, it'll be to licence it just like SCO's planning to do. They will try to keep Linux alive, but they will charge every company on the planet to use it - just like they did with Unix. You're asking them (IBM or SCO) to surrender their largest revenue stream for the sake of freedom? Get real.
    anonymous
  • One other thing that disturbed me in this analysis was the routine
    assumption that Linux and the GPL can actually be 'unhooked' from each
    other by a court of law just like that.

    American courts take property rights very seriously, and therefore
    tend to make remedies narrow. In the case of Linux this would mean
    that SCO would have to identify those part of the code that it
    considers infringing. It appears highly unlikely that the court would
    accept a so broad definition of derivative work, that Linux 'as a
    whole' were infringing, and not force SCO to be a little more
    specific. That's just not how it works in a real-life court, as the
    non-infringing part of the code is the valuable property of the
    coders, a property right to be exercised at their discretion.

    Even if worst comes to worst and the whole GPL were found to be
    invalid, that's not the end of the world either: that would just land
    the ball back to the original owners, who will no doubt want to place
    the code under a free licence that *does* hold up. Remember, in the
    absence of any licence, nobody can use the code except the owners
    amongst themselves.

    ...and even if the code were to land into the public domain (but how
    could it? Can you say 'taking without compensation'?) that would not
    essentially change the picture, except somewhat broadening the scope
    for Microsoft rip-offs of Linux code. After all, this is precisely why
    the GPL was chosen, to enforce reciprocity.
    anonymous