SCO Amends Suit, Clarifies "Violations", Triples Damages

Bootsy Collins writes "This evening on C|Net contains three new items. First, they've upped the damages they're seeking to $3 billion. Second, they claim that by making SMP technology generally available through Linux, IBM violated federal export controls and thus breached their contract with SCO through committing an illegal act. Finally, they elaborate on one specific technology they claim rights to which IBM inserted into the 2.5 kernel series -- the read-copy update memory management features which went in at 2.5.43. Unclear is why SCO thinks they have the rights to RCU, since the technology was originally developed by Sequent in the early 1990s."

Comments

SCO does not own RCU!

[xyote]

Even IBM doesn't own it. It's in the public domain. Because it was invented by IBM 3 times (hey, it's a big company). Once in the mid 80's in VM/XA Rel 2 (patent 4,809,168 now expired), once at Sequent which was acquired by IBM and where RCU was coined, and once as part of the K42 project at IBM research.

Re:SCO does not own RCU!

[_|()|\|]

The code that found its way into Linux is "based on original DYNIX/ptx code (released by IBM under GPL)." SCO's position is that everything in DYNIX/ptx, including RCU, is derivative of System V.

Most of us assumed that SCO's chest thumping about copyright infringement referred to literal copying of System V or Monterey code. Now, it seems, it is based on the more tenuous theory that any part of a System V-based O/S is derivative.

Re:SMP? RCU?

[dschuetz]

Since when did IBM have anything to do with SMP in the kernel?

I think they're complaining that SMP was a restricted technology, so by helping to add SMP to the Linux kernel, and making it freely available, IBM violated US export laws. By violating those laws, IBM is therefore in violation of the SCO / IBM license agreement (not sure how that connection was made), and therefore, all rights assigned to IBM are void, blah, blah, blah, blah.

They're asking a judge for an injunction now? Good. The sooner the judicial system gets a chance to take a formal look at this, the better.

Actually, $50 Billion (story inside)

[akiaki007]

Story from Bloomberg...

BN 06/16 SCO Cancels IBM Contract, Seeks $50 Billion in Suit (Update4)

SCO Cancels IBM Contract, Seeks $50 Billion in Suit (Update4)

(Adds additional IBM comment in fourth paragraph.)

June 16 (Bloomberg) --- SCO Group Inc. canceled International
Business Machines Corp.'s contract for the AIX Unix operating
system and revised a lawsuit against IBM to seek as much as $50
billion.
The amended complaint also seeks an order forbidding the
sale of IBM's AIX operating system, SCO Chief Executive Darl
McBride said. SCO, which licenses Unix to thousands of companies,
sued IBM in March claiming it transferred Unix code into the
related Linux operating system in breach of IBM's contract. IBM,
the world's second-largest software maker, denies the claims.
``The meter is now ticking with respect to AIX and will be
ticking until we get conclusion to this,'' McBride said in an
interview. SCO is seeking from IBM ``any amount they get from the
AIX or related business lines'' while the case is pending, an
amount he said could run as high as $50 billion.
IBM's AIX license is irrevocable and there is nothing in
today's action that changes that, IBM spokeswoman Trink Guarino
said. IBM will continue to ship AIX and develop products, the
company said in a statement.
SCO shares fell 28 cents, or 2.5 percent, to $10.93 at 4
p.m. New York time in Nasdaq Stock Market trading after earlier
dropping 14 percent to $9.60. Shares of IBM, the world's largest
computer maker, rose $1.75 to $84.50 in New York Stock Exchange
Composite trading. They've gained 9 percent this year.

Impede Marketing

SCO's lawsuit might hamper IBM and dozens of other
companies' marketing of Linux, which Morgan Stanley and other
companies use to cut costs, analysts said. Today's move escalates
SCO's demands by expanding a previous demand of $1 billion in
damages and seeking an injunction against AIX, which SoundView
analyst John Jones said generated $2.8 billion in sales in 2002.
``For a fraction of that, IBM can buy SCO outright,'' said
Carl Hoagland, an analyst with State Street Corp., referring to
the demand for as much as $50 billion. ``Why bother to play these
games?'' State Street is IBM's largest shareholder.
Lindon, Utah-based SCO, worth about $134 million based on
today's closing stock price, bought Novell Inc.'s licensing
rights to Unix for $145 million in 1995. Novell, whose software
is used to manage computer networks, last month challenged SCO's
claims, saying Novell retains ownership of the Unix patents and
copyrights. SCO maintains it has legal entitlement to them.
SCO's suit was filed by attorney David Boies of Boies,
Schiller & Flexner LLP, who represented the U.S. Justice
Department in its antitrust lawsuit against Microsoft Corp. and
Vice President Al Gore in his dispute over the 2000 presidential
election results. Both Boies' firm and IBM are based in Armonk,
New York.
Linux, developed by Finnish developer Linus Torvalds, is
maintained and updated by a corps of volunteer programmers who
make it available for free over the Internet. Companies such as
IBM, Oracle Corp. and Red Hat Inc. make money from Linux by
selling computers, software and services related to the operating
system.
Unix was first developed in the late 1960s by AT&T Corp. Sun
Microsystems Inc., Hewlett-Packard Co., IBM and other companies
over the years derived their own operating systems based on Unix.
Linux is one of the most recent Unix offshoots to emerge.
Microsoft Corp. is the world's biggest software maker.

--Jonathan Berr in the Princeton newsroom (1) (609) 750-4516 or
jberr@Bloomberg.net. and Dan Goodin in San Francisco, (1) (415)
743-3548 or dgoodin@bloomberg.net. Editor: Todd.

Re:Timeline of SCO events?

[iwaku]

This might help: http://news.com.com/2104-1016_3-1017965.html

But there is no distro with RCLOCK yet

[NuMessiah]

Does anyone remember the news articles like "SCO may expand Linux case" where RedHat, SuSE & co were mentioned as next targets?

Well how could SCO target those companies when they didn't released distros with RCLOCK yet ?!? Providing they can prove that RCLOCK is really "derived" from SysV.

All this looks like South American soap opera with really bad script.

bb4now,
PMC

Re:/. pathetic response

[lovebyte]

You are right about /. pathetic response. I think the most interesting point is this:

* Is including controlled technologies in Linux the equivalent of violating US export laws? That could have implications far beyond SCO's suit.

It could, but mostly for US companies and developers. Let's not forget that GNU/Linux is an international effort.

IBM and Linux SMP

[CrudPuppy]

I hate to break it to SCO, but Linux had SMP support LOOOOOONG before IBM got into the open source game. Idiots.

I hope SCO execs have to sell their kidneys to pay for the lawsuit filed by IBM when courts figure out how unsubstantiated these claims truly are!

Re:IBM and Linux SMP

[LO0G]

The issue isn't whether or not Linux had SMP support.

The issue is whether or not the source code in Linux was written by SCO or not.

Similarly, the comment in the topic about RCU being invented by Sequent is irrelevant. The issue is if the code that implements RCU in the Linux kernel was written by SCO.

If the code was written by SCO, then they have a case. If it wasn't, they don't.

Remember - SCO's not claiming patent infringement, they're claiming copyright violation. Their claim is that the Linux kernel contains code that was written by SCO and shared with IBM under SCO's license to IBM. They claim that IBM then turned around and inserted that code into the Linux kernel that they distributed, thus violating SCO's copyright.

Whether or not the concepts that are embodied in that code were original to SCO is utterly irrelevant to SCOs case. The ONLY issue is whether or not SCO's code appears in the Linux kernel.

Re:SMP? RCU?

[Royster]

Your understanding of the USL/BSD case is faulty. While the court did find that BSD included a small amount of code from AT&T, they also found that AT&T took much more than that from BSD.

Your understanding of derivative works is similarly faulty. While it's true that the issue of what is a derivative work in software has never been litigated, it is not true that the owner of the original work owns the copyright to the derivative work. When a company, like IBM, buys the right to make derivative works, they own the copyright on the derivative work. Disney bought the rights to make films from A.A. Milne's Winnie the Pooh. The Milne heirs do not own the rights to those films, Disney does.

How do you know what they're claiming?

[dark-nl]

SCO has been all over the place about what they're claiming. We've heard about patents, copyrights, trade secrets, and even trademarks, and vague "intellectual property rights". But the actual complaint they filed with the courts does NOT allege any copyright infringement, just breach of contract and unfair competition.

Re:How do you know what they're claiming?

[ascii27net]

This article on C|Net offers some insight on what they are claiming (comments from Darl McBride in the article): "The System 5 source code, that is really the area that gives us incredible rights, because it includes the control rights on the derivative works that branch off from that trunk." They are claiming that because they have rights over derivative works, everything IBM wrote for AIX is under there control, so IBM can't take code IBM wrote and distributed with AIX in Linux beause it is a derivative of SCO code. That bascially is a claim that they own everything ever writte n for a Unix platform. They even mention JFS - that isn't exactly an SCO technology - but they claim it is a derivative work. "the amount of code showing up inside of Linux today that is either directly related to our Unix System 5 that we directly own or is related to one of our flavors of Unix that we have derivative works rights over--we don't necessarily own those flavors, but we have control rights over how that information gets disseminated" "They were going to take the know-how, the people, the methods they developed over the years around AIX--which is our licensed version of Unix--and they were going to transport all that in a wholesale fashion over to Linux." How dare IBM port thier code for AIX to Linux!

Re:How do you know what they're claiming?

[swillden]

Sounds like SCO's definition of "derivative works" is similiar to that of the GPL.

Absolutely not. The parallel you're drawing is this: IBM wrote code that was used with and linked to SCO code, and SCO is claiming that they, therefore, have some rights to what is done with the other code that IBM wrote based on expertise they gained working with the SCO code. From a very naive viewpoint, you can say: "See, SCO's code 'infected' IBM's code (and engineers), just like GPL'd code 'infects' code that it touches." But you'd be wrong.

The GPL does not prevent you from taking code you wrote in one context and using it elsewhere. If you own the copyright, you can release it as many times as you like under whatever terms you like. So it *certainly* doesn't limit what you can do with new code that you write, even if it happens to draw upon expertise you developed while enhancing the GPL code.

For that matter, the GPL doesn't even prevent you from reading someone else's GPLd code, understanding their nifty, super-cool algorithm and implementing it yourself in your own, closed software. As far as the GPL is concerned, if you wrote it, you own it, no matter where you got the ideas from. Where the GPL gets sticky is when you want to distribute a closed version of something that contains code someone else wrote, and that is perfectly sensible: the fact that you may have written some parts of it doesn't give you the right to violate the wishes of the owner(s) of the rest of it.

Re:How do you know what they're claiming?

[swillden]

Yet there seems to be this idea in the software development community that even reading someone else's source code will "contaminate" your mind, and make you unable to write a similar program without infringing on copyright.

Yep. I understand how this mentality arose, but it sure is unfortunate.

It arose simply because (a) code is functional and (b) lawyers are conservative. Since form follows function, independently-written routines that do the same thing will often be similar, and sometimes look extremely similar. This means that it may, at times, be hard to prove that you wrote a piece of code if someone else happens to have highly similar code that predates yours.

Attornies (notably, Compaq's attornies back when they reverse-engineerd IBM's BIOS) saw this problem and devised a sure-fire solution: If we can show that the programmers who wrote code B never saw code A, then it's clear that B isn't a copy of A, not even some sort of "inadvertent copy". Hence the development of "clean-room" reverse-engineering, the notion that the engineers who are "exposed" to A are "contaminated" and can't work on B, etc.

It made sense for Compaq, since they did *not* want to face IBM's legal dept. in court, but it has left the rest of us with an unfortunately skewed view of copyright as it pertains to code.

Re:Maybe Linus is going to 'santize' linux..

[molnarcs]

"OS X is BSD, not a line of SysV in the beast, correct?" According to an interview with BSD core developers:

M. Warner Losh : The code was *NOT* derived from System V, but rather from Unix 6th and 7th edition, as well as 32V. Only the copyrights were similar to those used in System V source files. The code in question was merely blessed by USL and acknowledges as originating there by the Regents. Read here.

and...

There never was any System V code in any BSD. Ever. The IP claims that USL made its 1992 suit were based on the inclusion of sixth and seventh editions and 32V. While these were the forerunners to System V and System III code bases, they are not specifically System V or System III. Furthermore, SCO released, under its ancient unix program, all sources that predated System III and System V to be freely distributed under a BSD-like license. These specifically included 6th edition, 7th edition and 32V.

Read the rest of the interview here.

Re:SMP? RCU?

[vinsci]

None of that really matters, though, as it seems RCU technology is now public domain, due to the expiration of the patent US4809168, "Passive serialization in a multitasking environment".

Thanks to xyote for pointing this out:

"Even IBM doesn't own it. It's in the public domain. Because it was invented by IBM 3 times (hey, it's a big company). Once in the mid 80's in VM/XA Rel 2 (patent 4,809,168 now expired), once at Sequent which was acquired by IBM and where RCU was coined, and once as part of the K42 project at IBM research."

What lawsuit ?

[AftanGustur]

why spend the money on fighting the lawsuit or paying a settlement - buy out SCO

SCO hasn't sued anybody yet..

And if their behaviour can be used as a indicator of how solid their case is, I'd say here is a good change they won't be suing anybody in the forseeable future.

Either that, or the case will be dismissed right after SCO has explained it's case and the judge has had a good belly laugh ..

We asked about that in the IBM interview last year

[delcielo]

2) OS Blending
by 2names

As Linux developers inside IBM, do you get to see the AIX source code? If you do, are you allowed to "steal" some ideas from AIX and implement them in Linux? If not, why not, and what's the IBM official line?

IBM Kernel Hackers:

First of all, before any of us were allowed to contribute to Linux, we were required to take an "Open Source Developers" class. This class gives us the guidelines we need to participate effectively in the open source community - both IBM guidelines and lessons learned about open source from others in IBM.

We are definitely not allowed to cut and paste proprietary code into any open source projects (or vice versa!). There is an IBM committee who can and do approve the release of IBM proprietary or patented technology, like RCU.

That covers "stealing" code, but what about ideas? We might talk to an AIX programmer and comment we're seeing performance issues in Linux in this area or that area and she tells us they discovered that they really needed to profile the network routines when they saw that. Having solved the problem once, our non-Linux peers can help steer us without spelling it out for us, allowing us to still develop solutions that can then be open sourced.

It's a fine line to walk, especially as an engineer who just wants the answer :)

Interview

Re:SCO drops some claims about linux

[William Tanksley]

Okay, here's what happens. The slang for it is "selling short".

You borrow some stock from someone else; the stockbroker will choose who donates the stock. You immediately sell the stock, and the broker puts the money from the sale into an account.

You then wait. One of two things will happen:

1. The original owner of the stock will decide to sell, and will therefore demand his shares back;
or
2. You'll decide to cover your short.

Either way, you tell the stockbroker; he uses the money in the account to buy as many shares as you'd borrowed originally, and gives them to the original owner.

Then he gives you the leftover money.

This works GREAT when the stock price falls.

Now, what happens if the company goes bellyup? Well, in that case the stock is officially worthless; the owner will never ask for the shares. The entire short account -- all the money you made from selling the stock -- goes to you, with NO investment of your own money.

Now, what happens when the stock price goes up? Well, you still have to buy as many shares as you sold! So pay up, buddy.

The benefit of shorting is that you don't have to pay your own money; the risk is that there's no maximum amount you can lose, and there's always a maximum amount you can win. The stock could in theory increase forever; but it can never decrease below 0.

-Billy

Re:/. pathetic response

[bwt]

Has anyone, besides SCO, looked at the Linux code and tried to determine what might have come from SCO, and what might have come from a common predecessor?

So far four components of the Linux source have been implicated: SMP, RCU, NUMA, and JFS.

I have done a little digging into the NUMA code. IBM has contributed several people who have participlated in developing NUMA under linux. Some names I've run across: Martin Bligh, Matthew Dobson, Patricia Gaughen, John Stultz, Michael Hohnbaum. IBM even has a Linux NUMA news archive. It appears that IBM jumpstarted it's NUMA efforts when it purchased Sequent which was intitally intended to boost its participation in Project Monterey, which is no doubt the origin of SCO's objections.

The most obvious source file for NUMA is /usr/src/linux/mm/numa.c in the 2.4 series kernels. This file contains a comment header stating it was "Written by Kanoj Sarcar, SGI, Aug 1999". This file has been removed from later 2.5 kernels (its gone by at least 2.5.46), appearently because Linux accepted an IBM NUMA patch as reported here. This patch was announced by Martin Bligh and is likely the code in question in this lawsuit.