OPINION

Rethinking the IBM-SCO Imbroglio

The most significant threat to open source isn’t coming from SCO. It’s coming from IBM. SCO isn’t trying to shut down Linux. That demand for licensing fees from users was just a legal ploy — one more step in an intricate legal dance to which IBM is calling the tune.

It’s well past time for IBM to act like a grown-up and settle this issue.

Whether IBM does this in court or through negotiations doesn’t matter; what matters is reducing uncertainty in the open-source community — and if the execs at Big Blue can’t bring themselves to do it, perhaps Sun could step in and do it for them.

The Story So Far

The story as told by SCO is that Caldera decided to look at its 30,000 or so Unix licensees — inherited through a $100 million deal with Novell in 1995 — as possible sources of renewal revenue and found, among other companies, IBM and Microsoft. Microsoft promptly renewed its license upon request; IBM refused, and the resulting negotiations quickly stalled.

In response, SCO asked a Utah court on March 6, 2003, to enforce its rights and issued a letter to IBM notifying it that its license to use Unix code and derivatives would be lifted on June 13, 2003 — thus effectively prohibiting sales of AIX and all other IBM products containing code covered under the original AT&T agreements.

In response, IBM has not admitted there is a problem, stopped selling AIX or asked a court for an order quashing SCO. Instead, the company has embarked on the discovery process and now shows every sign of intending a long legal battle, the first part of which will culminate in a trial now scheduled to start in April 2005.

As a result, both sides have gone down the path of repeated filings and counterfilings. In these exchanges, the Boies law firm representing SCO (apparently on contingency) has, among other things, misrepresented Unix history, while IBM has denied everything — even that AT&T invented Unix, that Unix is operating-system software and that Unix is widely used in business.

The following is from Paragraph 1 of the June 16, 2003, revised SCO complaint:

“1. Unix is a computer operating system program and related software originally developed by AT&T Bell Laboratories (AT&T). Unix is widely used in the corporate, or enterprise, computing environment.”

According to IBM’s August 6, 2003, response and counterclaim, IBM “denies the averments of Paragraph 1.”

The level of debate in the rest of the Unix community hasn’t been much higher, with a lot of people trying to shout down SCO’s claims by impugning their motives, misdirecting attention away from the core issue, or drawing improbable conclusions and refuting them in lieu of arguing the facts.

For example, all of the following mistakes have become common fodder in the opinion and interview sections of various news publications:

  • IBM’s licenses covering AIX and derivative products are irrevocable and perpetual.

    To the extent that IBM has offered any fact-based defense, it has consisted mainly of the contention that the company did nothing it didn’t have the right to do.

    SCO does not deny that IBM has perpetual and irrevocable rights under the contract, but maintains that IBM allowed actions explicitly prohibited under the terms of that contract, thus setting it aside.

  • This is a battle over ancient history.

    Consider this quotation from a senior IBM representative as reported by Caroline Humer in a Washington Post article:

    IBM vice president of systems sales Bob Samson said in a memo to customers that “SCO’s scheme is an attempt to profit from its limited rights to a very old Unix operating system by introducing fear, uncertainty and doubt into the marketplace.”

    Whether SCO’s actions constitute “a scheme” and whether SCO is intentionally using FUD are currently arguable issues. In contrast, the allegation that this is about “a very old Unix” capitalizes on a widespread misunderstanding of the issues and represents FUD-slinging at its finest.

    In reality, the AT&T licenses include automatic update provisions under which new code is added to the code base and then covered by the core license terms. It is true that long-obsolete enhancements made to Unix when it was first ported to C in 1972 and 1973 are covered.

    It’s also true that code added by Sun, Motorola and AT&T to deal with memory management on the Power PC architecture in the late 1980s and early 1990s is covered, along with more recent work.

  • This is a copyright issue.

    It is not. This is a purely contractual issue. As it turned out, SCO hadn’t quite got its paperwork in order on copyright, but this had nothing to do with the lawsuit that is based entirely on the contract.

  • SuSE‘s recent success in getting a German court to order SCO to stop saying it is right proves that SCO is wrong.

    German courts are not bound by American law and do not enforce American ideas about free speech — commercial or otherwise. Remember, too, that the IBM-SuSE partnership is commercially important in a country whose current government was elected largely on an anti-American platform.

    These rulings do signify something important — that litigation like this creates significant legal barriers to the adoption of open-source software in the United States — barriers that do not apply to American economic competitors in Europe and Asia.

    IBM’s inability or unwillingness to settle this dispute quickly and quietly creates a classic non-tariff trade barrier against open-source products, thereby protecting Microsoft’s U.S. market share at the expense of the national economy.

  • HP’s willingness to indemnify its Linux customers shows that its lawyers think there’s nothing to the case.

    SCO’s complaint isn’t against HP or Linux. It’s against IBM. What HP is really promising is to point at IBM on the customer’s behalf. That may be a great sales gimmick for HP, but it says nothing about the merits of the SCO complaint against IBM.

  • SCO is attacking the entire Linux community.

    It is not. Responses from SuSE and Red Hat to the contrary, the SCO demand for license fees from Linux users was classic legal fiction. Both key SCO executives — Darl McBride and Chris Sontag — have said repeatedly that they are trying to work through issues to achieve justice without putting “a hole in the head of the penguin.”

    Most people find these license claims outrageous, but think about the drivers behind the demand and you might yet see SCO as a victim of its own lawyers and the way the courts operate.

    Fundamentally, the court eventually will require SCO to show a quantitative, market-based derivation for the value of damages claimed. Demanding license fees is one way of establishing that basis — and one likely to appeal to lawyers acting on contingency because a few successful sales would suffice to establish an enormous fair-market value.

  • The recent shouting match between Eric S. Raymond and Bruce Perens on the open-source side and Darl McBride on the SCO side has something to do with the issue.

    It doesn’t. There’s lots of sound and fury here, but no substance. Peel away the outrage, and what Raymond and others are saying is, “Show us the offending code, and we’ll replace it.”

    Great, but the lawsuit isn’t about code used in Linux. It’s about how that code got there. Peel away McBride’s paean to intellectual property rights, and all he’s really saying is, “Don’t shoot me, I’m just the messenger.”

  • Caldera’s Linux efforts invalidate SCO’s claims.

    This argument forms the basis of IBM’s “sixth counterclaim” in its August 6, 2003, filing as well as its more recent argument that SCO’s Caldera distribution violated IBM’s copyright on some GPL code.

    Although a definitive answer will have to await a court judgment, this line of reasoning seems to be a red herring. Just as one child cannot excuse his cookie-stealing by pointing out that the little sister ratting him out ate part of the cookie, so too does it seem unlikely that Caldera’s use of — and contributions to — Linux have anything of substance to do with the issue here.

    IBM’s most recent claim that SCO overstepped its rights with respect to IBM-contributed Linux code by attempting to extract license fees for it appears to be a similar piece of misdirection. The fact that attempts to extract license fees on third-party, open-source code provided under the GPL actually violate the GPL really has nothing to do with the fundamental contractual issue between SCO and IBM.

  • This is just about whether or not Linux code contributed by IBM in areas such as Sequent’s NUMA scheduler or journaled file system is derived from licensed code and therefore covered under the license (meaning that SCO wins) or is independent of it and therefore not covered (meaning that IBM wins).

    This is clearly not correct because SCO has already shown code predating the Sequent licenses later taken over by IBM. What’s interesting about this, however, is that it looks like a trap for SCO’s none-too-technical lawyers.

    While it seems unlikely that IBM’s U.S. management knew anything about the code transfers SCO alleges — which I believe took place at IBM’s Bvblingen skunkworks in Germany when the Linux-to-390 port was done — letting SCO’s lawyers lose themselves, and eventually their case, in a morass of legal documentation on a fundamentally unrelated issue seems a perfectly reasonable strategy.

    Intense Emotionalism

    One of the most interesting aspects of the case is the intense emotionalism in IBM’s denunciation of SCO in its August 6th counterclaim. Here’s part of section “E” called “SCO’s Scheme”:

    22. SCO devised a scheme to profit from the Unix rights that it acquired from Original SCO, though Unix was in no way developed by SCO. Although most, if not all, of the Unix technology that SCO purports to own is generally known, available without restriction to the general public or readily ascertainable by proper means, SCO undertook to create fear, uncertainty and doubt in the marketplace in regard to SCO’s rights in and to that technology.

    23. Recognizing that there is little value in its Unix rights, SCO did not limit its scheme to that technology, rather, SCO devised and executed a plan to create the false perception that SCO holds rights to Unix that permit it to control not only all Unix technology, but also Linux — including those aspects generated through the independent hard work and creativity of thousands of other developers and long distributed by SCO itself under the GPL.

    In general, people who point fingers at others point three back at themselves. Here, certainly, the stunning hypocrisy of the accusation that SCO wants to profit from Unixalthough “Unix was in no way developed by SCO,” the definitive attribution of unknowable motivations, and the general viciousness of tone do not reflect well on IBM.

    IBM: Take Two Tylenol

    So, what can or should IBM do? It should take two Tylenol and call McBride in the morning.

    Remember Johnson & Johnson? During the early 1980s, a few bottles of Tylenol on retail shelves in Chicago were contaminated with cyanide, and seven people died. Johnson & Johnson executives reacted by taking personal responsibility and acting immediately and openly to contain risks, first by pulling product from the shelves and then by fixing the underlying packaging problem.

    This effort cost Johnson & Johnson several hundred million dollars, but the results included a fairly quick sales recovery, a sales boost on other products, and hundreds of laudatory case studies citing the company for setting the standard in successful crisis management.

    The right answer for open source is to get this matter settled. If you believe that no IBM personnel exceeded the scope of the contract, call your friendly local IBM representative and ask that the matter be settled by forcing SCO into court as quickly as possible.

    If you believe that SCO is probably right, then urge that same IBM contact to face facts and put the matter to rest.

    Either way, the right answer is to quit stalling and deal with it.

    Is Sun the Solution?

    Sun’s Unix source licenses probably let Sun do whatever it wants with the source. If so, the company will be tempted to use the source code for its own competitive advantage by releasing its own Linux on its own hardware, charging a minor fee to the end user and offering strong legal guarantees on indemnification.

    Unfortunately, this would create a two-tier Linux world and would lead to problems in getting major applications certified on both platforms. If, instead, the company released Sun Linux to the open-source community under the GPL, its action would allow all of the Linux distribution developers to restart from a clean base, eliminating the ambiguities created by the SCO lawsuit without affecting the merits of SCO’s case against IBM.

    It seems likely that Sun has the legal right to do this, and it certainly has the moral right, because most of the code IBM — as differentiated from Sequent and SGI — is accused of leaking deals with functions affecting such areas as Power PC multiprocessing memory management. Those sections of code were first written by, or with the help of, people from Sun, NCR and Motorola.

    An action like this would have three very significant kinds of effects:

  • It would free the Linux community from most of the FUD currently being generated; remove Microsoft’s opportunity to use this FUD against Linux; and lift much of the threat to open source coming from lawyers seeking new billing opportunities.
  • It would bring more competition to Linux by making it extremely difficult, if not impossible, for Red Hat to control the North American Linux market while significantly weakening SuSE’s competitive position in the U.S. and world markets.
  • It would make it easy for everyone involved to see that this is fundamentally a simple contract dispute between SCO and IBM; allow AIX users to assess their exposure fairly; and allow the rest of us to get on with business.

    All of those sound good to me. How about you, Mr. McNealy?


    Paul Murphy, aLinuxInsider columnist, wrote and published The Unix Guide toDefenestration. Murphy is a 20-year veteran of the IT consultingindustry, specializing in Unix and Unix-related management issues.


  • 14 Comments

    • 1. discussing the legal aspects of this is a waste of time. Ask a lawyer why their language and tactics are so fat headed and they’ll tell you it’s all about winning i.e. how much they’ll earn.
      2.your just learning that IBM has been behaving badly. Can you name any time in IBM’s corporate history when that wasn’t true.
      3.in all your talk about sco you failed to mention that management at sco appears to be doing very well selling their stock at an inflated price.
      4. sun’s could go bankrupt before sco why even mention them
      5.this subject is getting boring . It will take forever to settle this in court meanwhile Linux will go on; if sco ever identifies improper code in Linux it appears to be easy enough to remove it. As for their intellectual property it seems that only the extreme defintion used by the States gives SCO any hope ( this leads to the interesting scenerio of the USA being the only country in the world using SCO unix and British units of measurement (in case you missed it your living in the past))

    • You should at lest read the court fillings, At this point Sco Has involed more than IBM in it’s case and will need to settle with them too. Sco only paid 7 mil. in scok for the Unix code. At this point Novell has resend Sco right to the code under the contract that they sold it to Sco. Also A few end user of linux have sued Sco.
      Sco has yet to show anything wrong IBM or Lunix Have done.

    • "SCO isn’t trying to shut down Linux" is a dumb and irrelevant statement. SCO is trying to make $$$$. If it succeeds in doing it by invalidating the GPL (GNU Public License), it will in effect kill Linux, but not the open source / open license software movement. The community exists because of the GPL. That community will continue to exist, just somewhere else. SCO will get fat pockets but only until companies move to a more untouchable version of software created under the GPL. When I write "companies," I’m referring to the very technology people who are proponents of the GPL who will move the company to GPL software.

    • Just a contribution to the FUD by an old Unix hand who doesn’t understand the GPL. Fortunately for both Linux and IBM – IBM’s lawyers do.
      Murphy should understand that the the SCO demand for licensing fees for Linux is (i) a FUD machine designed to slow the corporate spread of GNU/Linux financed by MS and Sun (from additional "licensing fees" and maybe the recent chanelled Baywater cash infusion) and (2) part of a complex pump and dump financial scam designed realize large AM ounts of cash for Canopy the parent holding company (viz the Vultus aquisition).
      We all know the threat of SCO sending out invoices for "Linux binary licences" is a fraud – they wouldn’t do for fear of all the legal cases, including criminal ones for mail fraud.
      Wake up Pauk what the SCO scam really means in the end is that they have accellerated the end of commercial proprietary Unix.

      • I’m curious, how different is the API for Solaris’ device drivers compared to BSD’s device drivers? I’m curious if there was any technical reason to buy anything from SCO, however, I think there was clearly a business reason to send money to SCO. Linux is destroying Sun’s marketshare, as is BSD.

        • SCO UnixWare (there is no SCO UNIX) and SCO OpenServer both have direct lineage to the AT&T code, being based on SVR4.2 (and later SVR5) and SVR3.2 respectively. Caldera purchased the rights tothis code base from The Santa Cruz Operation in May 2001. If, in fact, the offending code came from either code base (most likely the SVR5 code base, which SCO UnixWare 7 is based on and what the aborted Monterey project used), then IBM’s got no case, IMHO, since that code was never part of the AIX code base to begin with.

    • Dear Mr. Murphy,
      .
      While I like your essential point – that this matter should be settled quickly – I find that I disagree with most of your conclusions, many of which are based on poor research. Let me take them one at a time.
      .
      "The threat to open source isn’t coming from SCO. It’s coming from IBM. SCO isn’t trying to shut down Linux. That demand for licensing fees from users was a just a legal ploy — one more step in an intricate legal dance to which IBM is calling the tune.
      .
      It’s well past time for IBM to act like a grown-up and settle this issue.
      Whether IBM does this in court or through negotiations doesn’t matter; what matters is reducing uncertainty in the open-source community — and if they can’t bring themselves to it, perhaps Sun could step in and do it for them."
      .
      This idea is the heart of your problem. IBM has not in any way threatened Linux. They’ve contributed a great deal of money and time toward making Linux an enterprise class operating system. SCO, on the other hand, has sent letters to large Linux using organizations claiming that they own Linux IP without proving it in court. SCO has threatened individual Linux users, corporations, schools and charities with legal action. SCO has accused Red Hat, SuSE, and other Linux distributions of using stolen code in their distributions without making the least bit of proof available to either courts or the press. SCO could easily have kept this between IBM and themselves, but they clearly and deliberately chose to involve the entire Linux community.
      .
      "The story as told by SCO is that Caldera decided to look at the 30,000 or so Unix licensees inherited with the Novel deal on Unix as possible sources of renewal revenue and found, AM ong other companies, IBM and Microsoft. Microsoft promptly renewed; IBM refused and the resulting negotiations quickly stalled."
      .
      Sorry, you’re completely wrong. SCO claimed that IBM has stolen their Unix code and put it into Linux. They did not claim that IBM had failed to relicense UNIX. (And why would they – IBM’s license is irrevocable and perpetual.) This is not in any way about SCO claiming that IBM has to relicense the UNIX rights.
      .
      "1. Unix is a computer operating system program and related software originally developed by AT&T Bell Laboratories (AT&T). Unix is widely used in the corporate, or enterprise, computing environment."
      .
      According to IBM’s August 6, 2003 response and counterclaim, IBM denies the averments of Paragraph 1."
      .
      I don’t think IBM is denying that UNIX was invented at AT&T. They ARE denying that SCO Unix is used in the enterprise environment. The question of whether SCO is enterprise-capable is fairly important to IBM’s case. Agreeing to an averment which might be interpreted to claim SCO as enterprise class was not in IBM’s legal interest.
      .
      "SCO does not deny that IBM has perpetual and irrevocable rights under the contract, but maintains that IBM allowed actions explicitly prohibited under the terms of that contract, thus setting it aside."
      .
      What part of "perpetual and irrevocable" doesn’t SCO understand? SCO can certainly penalize IBM if they are out of compliance, but they can’t revoke the license even for misbehavior of the worst sort, and certainly not without going to court.
      .
      "In reality, the AT&T licenses include automatic update provisions under which new code is added to the code base and then covered by the core license terms. It is true that long obsolete enhancements made to Unix when it was first ported to C in 1972 and 1973 are covered."
      .
      You clearly haven’t read the papers from the USL vs. BSDi case. Go here and you’ll learn what probably will be covered, what probably won’t be covered, and why.
      .
      http://cm.bell-labs.com/cm/cs/who/dmr/bsdi/930303.ruling.txt
      .
      "# This is a copyright issue.
      .
      "It is not. This is a purely contractual issue. As it turned out, SCO hadn’t quite got its paperwork in order on copyright, but this had nothing to do with the lawsuit that is based entirely on the contract."
      .
      Hey, you got one right. Good for you!!
      .
      # SuSe’s recent success in getting a German court to order SCO to stop saying it is right proves that SCO is wrong."
      .
      You’re half-right, but your phrasing is wrong. It probably should read, "SCO’s unwillingness to show their code in a German court proves they are wrong." The issue here is not what the court ruled – their ruling was more-or-less equivalent to a preliminary injunction, so nothing has been proven, but SCO’s unwillingness to fight the injunction DOES speak volumes.
      .
      "These rulings do signify something important — that litigation like this creates significant legal barriers to the adoption of open-source software in the United States — barriers that do not apply to American economic competitors in Europe and Asia."
      .
      IBM’s inability or unwillingness to settle this dispute quickly and quietly creates a classic non-tariff trade-barrier against open-source products, thereby protecting Microsoft’s U.S. market at the expense of the national economy."
      .
      What are you smoking? Can I have some? And once again, why is it IBM’s fault?
      .
      "Fundamentally, the court will eventually require SCO to show a quantitative, market-based derivation for the value of damages claimed. Demanding license fees is one way of establishing that basis — and one likely to appeal to lawyers acting on contingency because a few successful sales would suffice to establish an enormous fair-market value."
      .
      Maybe, but if they actually bill anyone, they’re guilty of fraud. You write as if you don’t understand that SCO has not in any way proved their case. No lawyer would advise them to invoice anyone, and as you’ve doubtless noticed, SCO keeps delaying their invoices. Not only is fraud an issue, but if SCO loses, they’re vulnerable to any Linux user who paid for their license and chooses to sue them.
      .
      ""Show us the offending code and we’ll replace it."
      .
      "Great, but the lawsuit isn’t about code used in Linux, it’s about how that code got there. Peel away McBride’s paean to intellectual property rights and all he’s really saying is, "Don’t shoot me, I’m just the messenger.""
      .
      Let’s try some simple logic here. Before SCO can prove HOW the code got into Linux, they’ve got to simply prove that the code IS THERE. There’s also a legal concept called "mitigation of damages" you might want to research. SCO has a legal obligation to help the IBM mitigate any alleged damages. IBM, (and any other parties SCO feels may have been involved) can’t do that unless they’re shown the code.
      .
      "# Caldera’s Linux efforts invalidate SCO’s claims. This argument forms the basis of IBM’s "sixth counterclaim" in its August 6, 2003 filing as well as its more recent argument that SCO’s Caldera distribution violated IBM’s copyright on some GPL code.
      .
      Although a definitive answer will have to await a court judgment, this line of reasoning would seem to be a red herring. Just as one child cannot excuse his cookie-stealing by pointing out that the little sister ratting him out ate part of the cookie, so too does it seem unlikely that Caldera’s use of — and contributions to — Linux have anything of substance to do with the issue here"
      .
      Once again, you’re half-right. It has been clearly proven that several SCO employees (sometimes operating from a Caldera or SCO email address,) worked on some of the very portions of Linux they’re accusing of IBM of stealing, such as JFS, SMP, etc. SCO (back when they were Caldera,) also paid for the equipment used to make SMP possible on Linux. Once again, you might want to do your research on some legal issues. Estoppel, waiver, and apparent authority are the ones that come immediately to mind. You also might want to spend some time studying the work Christoph Hellwig – hch(at)caldera.de and hch(at)infradead.org – put into the JFS port. http://www.groklaw.com is a good place to start.
      .
      "IBM’s most recent claim that SCO overstepped its rights with respect to IBM-contributed Linux code by attempting to extract license fees for it appears to be a similar piece of misdirection. Here the obvious truth that attempts to extract license fees on third-party, open-source code provided under the GPL violate the GPL gives credibility to an action that really has nothing to do with the fundamental contractual issue."
      .
      Whether IBM’s GPL claim will hold up in court is a matter for the future. However, I suspect that there’s another issue here, which is that IBM believes the lack of copyright claims in SCO’s case is not a bug, but a feature. In other words, while their copyright claim seems strong to me, I suspect that IBM didn’t care how they worked copyright issues into the suit, just as long as they did so. (Specifically, I’m guessing that IBM is worried that if they don’t bring copyright into they case they won’t be allowed to bring us the USL vs BSDi case. I could be wrong.)
      .
      "# This is just about whether or not Linux code contributed by IBM in areas such as Sequent’s NUMA scheduler or journaled file system is derived from licensed code and therefore covered under the license (meaning that SCO wins) or is independent of it and therefore not covered (meaning that IBM wins). This is clearly not correct because SCO has already shown code predating the Sequent licenses later taken over by IBM. What’s interesting about this, however, is that it looks like a trap for SCO’s non-too-technical lawyers."
      .
      Keep in mind that the code SCO inadvertently showed was a disaster for them. One of their code snippets was revealed almost immediately as a clean-room rewrite of the Berkeley Packet Filter, and the other turned out to be a memory allocation algorithm from one of the first books on C programming ever written.
      .
      "While it seems unlikely that IBM’s U.S. management knew anything of the code transfers SCO alleges — which I believe took place at IBM’s Bvblingen skunkworks in Germany when the Linux-to-390 port was done…"
      .
      That’s a startling claim. Do you have the slightest bit of evidence to support it? Do you have the slightest bit of evidence that ANY code transfers ACTUALLY took place? SCO certainly hasn’t furnished any proof.
      .
      "The right answer for open source is to get this matter settled. If you believe that no IBM personnel exceeded the scope of the contract, call your friendly local IBM representative and ask that the matter be settled by forcing SCO into court as quickly as possible.
      If you believe that SCO is probably right, then urge that same IBM contact to face facts and get the matter dealt with.
      .
      Either way, the right answer is to quit stalling and deal with it."
      .
      IBM and RedHat are both trying to "quit stalling and deal with it." They just need a little help from SCO. If you got to http://www.groklaw.net you can read all the recent filings in the case. SCO has been stalling and delaying for weeks. This can be very simply determined by checking the public record. If you didn’t learn that in reporter school, go back to class for a couple years before you post again.
      .
      "Is Sun the Solution?"
      .
      Sun has funneled millions of dollars to SCO recently. They have taken advantage of every break that’s gone SCO’s way, or that could be spun as if it went SCO’s way. Why in the world would Sun try to stop the madness when they are doing their best to cause it and profit from it? This has been widely knows and discussed for some time. Did you just ignore it when you did your research?
      .
      Given Enough Eyes, All Lawsuits Are Shallow:
      .
      Now that I’ve blasted you, Mr. Murphy, let me explain what’s fundamentally wrong with your approach. Put very simply, the Open Source community is SELF ORGANIZING. There are several websites which are doing very important and original research on the SCO case. By now those of us who follow the case closely (or help with the research, as I do) know far more about it than most tech journalists, and when we read something like what you’ve written above, we sigh, grumble a little, and open fire. Please, please, please do your research next time. It’s not that hard.
      .
      Alex

      • Yes, Sun did buy the right to use an estimated 600 or so device drivers in Solaris for x86. Those came, however, from SCO Unix, which was developed for the x86 to begin with, rather than from the AT&T code base.

    • This article is fundamentally flawed. First and foremost, the most significant threat to the open source community is not IBM, but rather the proliferation of articles written by authors whose opinions are being formed and shared with the public as fact without the benefit of any significant research being done to verify the truthfulness of statements given by the principals involved in this dispute. The bedrock foundation supporting this article, that IBM refused to renew a UNIX license with then Caldera is invalid. IBM purchased and FULLY paid for a contract granting them ‘perpetual, irrevocable UNIX rights’ initially from AT&T in 1986, which was then additionally modified in 1996 (the so called ‘Amendment X’. Just because a product, license or contract is sold, this in no way invalidates or terminates the terms of the contract. You buy the product(s), you inherit the existing contracts.
      As far as SCO’s varying claims of ‘IP’ infringement, contract infringement, and other malfeasance, whether real or imagined, IBM’s response, as well as that of the Open Source community has consistently been ‘SHOW US THE OFFENDING CODE’. SCO has steadfastly, obstinately refused to do so.
      Finally, as far as the spurious claims that it is IBM who stalling, even a cursory look at court filings reveals that SCO has consistently asked for delay after delay after delay, not IBM.
      All of this information is public record. Rather than simply taking the word of one of the principals involved in the dispute, especially one who has repeatedly shown no hesitation to put forth half-truths, disingenuous remarks, AM bigious statements, and even obvious lies, it should behoove any writer to check the facts for themselves. If not, the writer is in the wrong line of work. I’m sure there’s a shoe store or fast food restaurant just waiting to hire them.
      Want fries with that?

    • While I agree with your comments about IBM and their ability to rapidly resolve this issue, I’m not sure that SUN has as much flexibility as you think. If I’m not mistaken, SUN is under the same restrictions as is any other UNIX Licensee (IBM, SGI, etc). Yes, SUN bought out their royalties years ago, but they didn’t buy out their contractual obligations. Those obligations have flowed through the various owners of the Licensing Rights (and Novell sold them to The Santa Cruz Operation, who then sold them to Caldera, who changed their name to The SCO Group). In fact, I believe that the reason SUN licensed technology from The SCO Group earlier this year was to easily and quickly obtain the necessary drivers that would make Solaris x86 a real operating system again (after years of neglect).

    • On what basis does Paul Murphy suggest that IBM is stalling? IBM — and Red Hat — have pushed for speedy resolutions of the case. Red Hat has sued for a declaratory judgement. SCO’s weaseling campaigns for delays and postponments are a matter of public record that ANYONE who calls himself a journalist would have looked up.
      Instead, Murphy invents fantastic stories about SCO’s activities being IBM’s fault, and then rounds it off with a preposterous appeal to the lumbering technology corpse known as SUN to ignore the GPL and issue Linux "for a fee"(?). Because McNealy, in Murphy’s fantasy dreamworld, has some magic ability to overturn copyright law and "indemnify" users against non-existent claims.
      Whenever you see a journalist dragging the tired, meaningless talk of user "indemnification" into this debate, it’s a sure thing that he’s been drinking the SCO koolaid. Throw in some outright lies and distortions and it all ads up to something more akin to another rambling discourse from Blake Stowell than an article or honest opinion piece.

    • You got a few things wrong:
      .
      1) SCO has no right to revoke IBM’s license to use AIX, and Novell supports this contention.
      .
      2) It’s not IBM, but SCO that is stalling on discovery at this very moment: http://www.groklaw.net/pdf/Doc-54.pdf. Of particular hilarity is this "The drafters of the first Motion for Enlargement worked largely from faxed documents that were incomplete and did not contain the Addendum to IBM’s Motion to Compel. Since the filing of the original motion, the contents of the Addendum were discovered."
      .
      3) IBM doesn’t have any problem, SCO does. Why should IBM fork over a ton of cash or "admit there is a problem" just because SCO claims there is with absolutely no proof? What is SCO’s problem with IBM exactly? They are claiming that IBM stole their code and placed it into Linux, if this is the case, why hasn’t SCO identified any of the code? They’ve not even done this in discovery, and keep in mind the entire Linux code base is public.
      .
      4) IBM did NOT deny everything, "even that AT&T invented Unix, that Unix is operating-system software and that Unix is widely used in business." IBM is denying that "Unix" is necessarily related to AT&T’s codebase. Unix is a brand. It’s anythign that can pass opengroup’s certification process to be labelled "Unix". I refer you to here: http://www.unix.org/what_is_unix/the_brand.html
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      5) You claim "SCO does not deny that IBM has perpetual and irrevocable rights under the contract, but maintains that IBM allowed actions explicitly prohibited under the terms of that contract, thus setting it aside." If this is true, explicity state how IBM violated it’s contract – because SCO certainly doesn’t know and IBM is in discovery trying to find out.
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      6) SUSE didn’t drag SCO to court in Germany, LinuxTag did. All LinuxTag did was request that either SCO show evidence of the "millions of lines of infringement", and SCO couldn’t show ONE. That effectively shut down SCO in Germany. Europe *was* 50% of SCO’s revenue at the time. It had nothing to do with the IBM case, it had to do with SCO claiming that there were thousands of lines of code illegally copied into Linux.
      .
      7) SCO was threatening to sue end users, NOT IBM when HP indemnified customers. There are actually 2 legal fronts. One is the contract dispute with IBM, and the other is SCO’s claim that Linux contains SYS V code in it. HP wasn’t indemifying with regard to the first case, but the second. If HP is willing to indemnify customers who SCO claimed they would sue if they didn’t purchase SCO’s "binary run time license", HP would either have to be certain that SCO wouldn’t sue end users or that SCO wouldn’t prevail in getting damages if they did.
      .
      8) You claim that it’s no true that "SCO is attacking the entire Linux community." SCO threatened to sue Linux Torvalds, has called the Linux community thieves, has misquoted Perens and Stallman intentionally to discredit them, and has claimed that Linux is nothing more than stolen SYS V code. That’s an attack on the Linux community’s integrity for one, and the attempt to license Linux is an attempt to steal what the community created.
      .
      9) This statement you made is completely false "Responses from SuSE Latest News about SuSE and Red Hat to the contrary, the SCO demand for license fees from Linux users was classic legal fiction." If this is "legal fiction", explain this: http://biz.yahoo.com/prnews/030811/lam083_1.html or this: http://www.idg.com.sg/idgwww.nsf/unidlookup/876CEE68FE78155748256DC700151587?OpenDocument SCO has clearly tried to license Linux, in violation of the GPL. It’s *your* statement that is fiction.
      .
      10) you also claim "the recent shouting match between Eric S. Raymond and Bruce Perens on the open-source side and Darl McBride on the SCO side has something to do with the issue. It doesn’t. There’s lots of sound and fury here, but no substance." which is completely false. 24 hours after SCO Forum, SCO’s "examples of infringement" were debunked. The first "example of infringment" is from this book http://www.amazon.com/gp/reader/0131103628/ref=sib_dp_pt/104-3990434-9678345#reader-link on page 187. This book is read by nearly everybody that knows how to program in C. The "second example of infringment" turned out to be the BPF code, BERKELEY’S Packet Filter – something SCO doesn’t even own. What does this signify? That SCO doesn’t even know what belongs to them and what is in the public domain.
      .
      11) What you also seem to have missed is that it doesn’t appear that Linux has a problem with proprietary code showing up in it, but SCO has a problem with having public code show up in SYS V. SCO humiliated themselves by showing code that they thought belonged to them, which in fact belonged to Berkeley. The BSD license allows you to use their code in proprietary code, but only if the header remains intact. If the header was intact, SCO would have known the BPF code was no exclusively their’s.
      .
      12) With regards to the GPL, SCO is in a catch-22. They are either VIOLATING the GPL by distributing Linux with proprietary code in it (and yes, SCO is still distributing Linux) and are subject to sanctions from contributors to Linux (contributors like IBM), or there is no proprietary code in Linux. It has nothing to do with a cookie jar.
      .
      13) You also state: "While it seems unlikely that IBM’s U.S. management knew anything about the code transfers SCO alleges — which I believe took place at IBM’s Bvblingen skunkworks in Germany when the Linux-to-390 port was done". But there is a problem with this. To date, SCO hasn’t been able to show 1 single line of code that IBM contributed that originated from IBM that IBM didn’t create from scratch. My bet is that there were no code transfers. Again, the Linux code base is public, and a record of all contributions are kept. It should be an easy matter for SCO to prove the case.
      .
      So – why hasn’t SCO proven their case?

    • If Paul had read *any* of the court documents, the legal evidence — if he had read and understood *anything* about this case — he’d know who was stalling. SCO. And he’d know why — because SCO does not *want* to go to court because SCO knows it has no case.
      The evidence is there. Anyone who calls himself a journalist should find it. Any publication that wants to take itself seriously would expect this from a journalist. SCO has filed delays, refused to come up with discovery, and is fighting RedHat’s case on a similar basis. If Paul had even, say, been to Groklaw, he’d know this.
      IBM wants to go to court. IBM is not going to "settle" by giving SCO hush money, howevermuch SCO pleads, begs and threatens. SCO has no case and its intimidation will fail. IBM will prevail in court, and so will Red Hat — if it ever gets there. If it doesn’t get there, that’s SCO’s fault. Look it up, Paul. Look it up.

    • SCO is threatening to sue Linux users.
      .
      There is nothing in the IBM case that makes that necessary. SCO decided on its own to open a new front. SCO made a decision to make the threat, SCO reiterates the threat at every opportunity. SCO chose to make its own separate SCO-Linux imbroglio separate from the SCO-IBM imbroglio.
      .
      I don’t care about the SCO/IBM case. That will be settled in court. SCO’s threats to sue Linux users at a time of SCO’s choosing are the heart of this imbroglio. The IBM case has almost nothing to do with that.
      .
      The "violations" SCO accuses Linux users of committing are mostly not even related to IBM.

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