More on SCO vs. IBM Lawsuit

Colin Stanners writes "SCO has held a TeleConference and put up a page with information on their lawsuit against IBM. The key phrase (from their complaint) is: 'It is not possible for Linux to rapidly reach UNIX performance standards for complete enterprise functionality without the misappropriation of UNIX code, methods or concepts to achieve such performance, and coordination by a larger developer, such as IBM.' Their page also includes a Q&A, presentation, and exhibits, although these are mostly licensing agreements and not code." Bruce Perens had an interesting comment on the situation, more than one group is trying to organize a boycott, and Newsforge has a story based on SCO's press conference this morning. Newsforge and Slashdot are both part of OSDN.

Comments

why?

[reaper20]

more than one group is trying to organize a boycott

The market has been "boycotting" SCO and it's crap for years, not like there needs to be a special effort.

However it turns out

[Anonymous Coward]

you have to admit that SCO is the better platform for rapping, because SCO rhymes with "fro", "dough", and "blow".

Upside

[skroz]

Interesting thing... if/when this resolves itself, and it's shown that SCO's allegations are false, and Linux DID scale to those performance levels in such a short period of time, this will weigh extremely favorably on the side of the effectiveness of the open source model.

I asked this before, answer this time

[stratjakt]

What if SCO ends up being right in court?

Why would they poke the T-Rex that is IBM with a stick, unless they think they can bring it down?

We can sit around laughing or bitching or whining or moaning, but what will happen if there turns out to be code in Linux that we dont have the rights to, either by way of trade secrets or patents?

Can all the SysV and other SCO stuff be removed without killing Linux? Would a setback be weeks, months, years, or would it be the end?

Re:I asked this before, answer this time

[SquadBoy]

Simple answer (Stolen from someone much smarter than me)

This is suicide by cop[1].

Or it's something similarly twisted. SCO is simply dead. The back
story may be interesting though.

The news.com story notes that SCO may be pissed over the failure of
Project Monterey, which was aimed at reimplementing GNU/Linux as a
proprietary Unix for the Itanic (that's just so wrong so many ways I
won't even start).

Just a few off-the-cuff observations.

- You don't launch a land war in Asia.

- You don't launch a billion-dollar patent battle with IBM, if your
strategy is in fact to win that battle.

- Corrolary of the above is that you're either trying to lose, you're
not calling the shots, or you're aiming to win another battle.
These are not mutually exclusive, though options 2 & 3 are the most
likely pairing.

- Aside: IBM generates over $1b (approaching 1.5b IIRC) annually in
patent licensing revenues. Their patent portfolio numbers over
22,000. IBM is the single largest holder and recipient of US patent
grants.

- Theory: somebody's trying to sow patent problems for IBM, and/or
tie up IBM legal in a suit, while somebody else pulls a fast one.

- Theory: Caldera wants to prod IBM into reviving the DR-DOS suit (or
something similar) against Microsoft (or other parties). I find
this unlikely, but mention it for completeness.

- Theory: Caldera's management is trying to avoid breach-of-
fiduciary-interest or other similar charges, while disposing of the
company while putatively pursuing a fiduciary interest of the
company.

- Theory: This is Wang v. Netscape again. In that case, Microsoft
bought a significant interest in the dying Wang corporation, and
Wang pursued patent suits against Netscape. The patent was
eventually invalidated, but such battles are costly.

- Theory: (left field variety) LFP or similar[2] have corraled
Caldera into making a blatent demonstration of just how broken the
patent system is by going after its (the patent system's) largest
beneficiary.

Watch this space, things got interesting.

Peace.

--------------------
Notes:

1. If you're not familiar with the term: a perp assaults a police
officer, in such a way that the cop has to use deadly force. This
being the apparently desired outcome of the perp.

2. LPF: League for Programming Freedom, an anti-patent group associated
with Richard M. Stallman.

Credit to Karsten on this one. This is good enough that it needs to be posted here.

Re:I asked this before, answer this time

[Zathrus]

Why would they poke the T-Rex that is IBM with a stick, unless they think they can bring it down?

Because, as Mr. Perens points out, they don't want to bring it down. They want to be bought out. Again.

You'd have an amazingly hard time proving infringement in court by IBM -- the bits that are most worrisome (such as SysV IPC) were in place long before IBM touched Linux or viewed SCO source. They were implemented because they were widely documented in Unix manuals, books, and taught in schools.

SCO's legal brief has quite a few sections that are laughable:

82. Linux started as a hobby project of a 19-year old student. Linux has evolved through bits and pieces of various contributions by numerous software developers using single processor computers. Virtually none of these software developers and hobbyists had access to enterprise-scale equipment and testing facilities for Linux development. Without access to such equipment, facilities, sophisticated methods, concepts and coordinated know-how, it would be difficult or impossible for the Linux development community to create a grade of Linux adequate for enterprise use.

84. Prior to IBM's involvement, Linux was the software equivalent of a bicycle. UNIX was the software equivalent of a luxury car. To make Linux of necessary quality for use by enterprise customers, it must be re-designed so that Linux also becomes the software equivalent of a luxury car. This re-design is not technologically feasible or even possible at the enterprise level without (1) a high degree of design coordination, (2) access to expensive and sophisticated design and testing equipment; (3) access to UNIX code, methods and concepts; (4) UNIX architectural experience; and (5) a very significant financial investment.

Section 82 is humorous. Section 84 is downright absurd. Point by point:

1) It's called a mailing list and revision control. The very same methods that are used in a vast amount of corporate development.

2) What expensive design and test equipment? Earlier in the brief SCO admitted that x86 hardware was vastly less expensive. The design and test equipment is these very same inexpensive boxes.

SMP wasn't that absurdly uncommon in the early 90s, and lots of people had access to large scale equipment, especially at a university. I know people who had unfettered access to early 90s supercomputers (Crays, etc), as well as SP-2s. Or built a cluster of SMP boxes running on Linux for PhD projects -- all of this in the early to mid 90s.

3) Code? No need. Methods and concepts? Sure. They're documented in man pages, thousands of books, and taught as part of most university CS curriculums. They're not difficult concepts really, and re-implementing them may not be trivial, but it's not impossible either.

4) Yes, because nobody knows the UNIX architecture except SCO. Uh huh. It's not in the very same books and courses mentioned previously.

5) There is a large financial investment - look at Redhat, Slackware, FSF, or just start counting man-hours donated to the kernel. If volunteer efforts were incapable of accomplishing anything then Habitat for Humanity would've gone belly up over a decade ago.

To top it all off there's a good bit of questioning with regards to Caldera Linux, the GPL, and SCO. If SCO knew that there were IP violations in the Linux kernel then it willfully violated the GPL in distributing them in Caldera Linux. That doesn't mean that those IP rights suddenly get lost, but it does mean that their legal case becomes a whole lot more hairy.

'shared source' comment over at lwn.net

[dd]

One of the best comments that I've read about this lawsuit was made by "josh_stern" over on LWN.net, and I quote:

But I hope Bruce and others won't lose time pointing out the implications for people who want to participate in programs like MSFT's "shared source". They open themselves up to later lawsuits if they later develop or distribute anything technologically related, even if it isn't textually derived from the original.

It is an interesting counterpoint in case Microsoft wants to use the lawsuit in any anti-linux campaign ...

Re:Whatever SCO

[TaliesinWI]

Yeah, no kidding. I switched more than one client away from UnixWare to Linux back in 1997 and 1998, well before IBM was seriously involved, AND got all the legacy applications running under the SysV emulation, even back then. Some of those systems are still running (they never really needed to be bleeding edge), and their upgrade path has been made an order of magnitude easier (and cheaper) by switching.

SCO was irrelevant five years ago. They figure that the possibility of getting any money from IBM beats killing off what little credibility they might have, because they're sinking anyway.

What if SCO kicks the bucket?

[CoolVibe]

What's going to happen to all that old UNIX licensing stuff that they do? AFAIK, I've used their ancient unix archives to play with a pdp-11 emulator. Heck, it was a great quick place to get a real UNIX from quickly that would boot on it.

What's going to happen to SCO's intellectual property when it croaks? Who will buy it? I think the ancient unices that they own are of great interest. I'd love to see those in the public domain, but that's probably wishful thinking.

What about Solaris?

[MrTilney]

From the complaint:

Except for SCO, none of the primary UNIX vendors ever developed a UNIX "flavor" to operate on an Intel-based processor chip set. This is because the earlier Intel processors were considered to have inadequate processing power for use in the more demanding enterprise market applications.

What about the x86 version of Solaris?

Interesting clause in exhibit C

[isn't my name]

IANAL. However, I am trying to read through the exhibits SCO provided on its website. I have not looked at all of them, but I couldn't resist passing this on. Their exhibit C is a letter of understanding between AT&T and IBM which re-writes some of the clauses of the contract and license in an earlier exhibit.

I would point people to the 4th page of the pdf file, which addresses clause 7.06a of an earlier agreement. It reads in part:

"LICENSSE agrees that it shall hold SOFTWARE PRODUCT subject to this agreement in confidence for AT&T. . . . Nothing in this agreement shall prevent LICENSEE from developing or marketing products or services employing ideas, concepts, know-how of techniques relating to data processing embodied in SOFTWAR PRODUCTS subject to this agreement, provided that LICENSEE shall not copy any code from such SOFTWARE PRODUCTS into any such product or in connection with any such service and employees of LICENSEE shall not refer to the physical documents and materials comprising SOFTWARE PRODUCTS subject to this agreement when they are developing any such product or service or providing any such service. If information relating to a SOFTWARE PRODUCT subject to this agreement at any time becomes available without restriction to the general public by acts not attributable to LICENSEE or its employees, LICENSEES obligations under this section shall not apply to such information after such time."

Now, I've not glanced at exhibits D and E and have not read completely exhibits A,B and C. However, this clause, if not overridden in D or E, would seem to me (remember IANAL) to give IBM the right to use IP embedded in licensed code to produce other code or services. It would even seem to allow people who have worked with licensed code to work on the new project so long as they do not refer to licensed code or documentation while working on the new project.

So, even if IBM took SCO intellectual property and placed it into Linux, so long as they didn't copy SCO owned code or look at while working on the Linux code, it seems to me that it would have been perfectly legal under the contracts for IBM to co-opt SCO owned IP and place it under the GPL in Linux.

Anyone read it differently?

Re:Ha ha! You beat me to it!

[supremebob]

SCO might have written their own death warrant by suing Big Blue. IBM has more software patents than Microsoft and Oracle combined, and probably has enough legal firepower in their patent portfolio to countersue SCO out of existance.

I doubt that anyone will miss them once IBM is finished mopping the floor with them.

SCO has some misconceptions about Linux/GNU

[einnor]

The SCO lawyers seem to have quite a few misconceptions about Linux, and especially GNU, in their brief. Is the FSF gonna file a friend of the court brief? Someone should correct them.

Here's some of the misconceptions they have:

In their brief, one of the points they make is that Linux was originally created for not-for-profit uses:

76. The initial market positioning of Linux was to create a free UNIX-like operating system to be used by developers and computer hobbyists in personal, experimental, and not-for-profit applications. As such, Linux posed little, if any, commercial threat to UNIX.

I don't know for sure about what Linus was thinking, but I know for certain that GNU was intended to be used in commercial, for-profit applications. Stallman has repeatedly stated that people can GPL stuff and sell it. His analogy was with legal help: you pay a lawyer to write up a contract, but then you can give the contract to a friend in a similar situation. You pay once for the lawyer to write up the contract; the lawyer doesn't get royalties every time you use it. OTH, your friend would be wise to at least run it by a lawyer before using the contract to make sure it fits his/her situation. You can produce GPL'ed software that way, too. You can offer custom GPL'ed programs for a fee. The GPL has ALWAYS been intended to be applicable to for-profit programs.

79. In order to assure that the Linux operating system (and other software) would remain free of charge and not-for-profit, GNU created a licensing agreement entitled the General Public License ('GPL').

Free of charge, yes. Not-for-profitt, no. I can sell GPL'ed code for a gazillion dollars if I want. Of course, the first person who buys it can then put it on an ftp site and distribute it to the world...

80. Any software licensed under the GPL (including Linux) must, by its terms, not be held proprietary or confidential, and may not be claimed by any party as a trade secret or copyright property.

All GPL'ed software is copyright property. That's the only way the GPL works.

And then they go on to claim that IBM is trying to "destroy the economic value of UNIX (paragraph 90)." Um, guys, Stallman's intent at the outset was to destroy the economic value of all proprietary software.

I just hope that IBM's lawyers don't let them get away with such huge misconceptions. I really hope IBM can squash this suit like a bug (oh, wait, is that a good analogy? IBM... squashing bugs...infinitely growing bug lists... hmmm...))