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SCO Announces Final Termination of IBM's Licence
ickle_matt writes "SCO have announced the final termination of IBM's UNIX license, despite Novell telling them they can't. Interestingly enough there's a new set of "stolen code" figures in the release - 'approximately 148 files of direct Sequent UNIX code to the Linux 2.4 and 2.5 kernels, containing 168,276 lines of code. This Sequent code is critical NUMA and RCU multi-processor code previously lacking in Linux. Sequent-IBM has also contributed significant UNIX-based development methods to Linux in addition to the direct lines of code specified above.' "
To avoid the slowness of SCO's Cold Fusion, use this Yahoo! Finance mirror of the Press release:
http://biz.yahoo.com/prnews/030813/law050_1.html
2.5 isn't a from-scratch rewrite of the kernel so large portions of the kernel source code are common. Apparently the changes were introduced in the 2.4 kernel so the 2.2 kernel isn't a problem. The above isn't implying that I believe that there is any validity to SCO's fraudulent claims.
Chris Kuivenhoven is a thief, beware
This is the license for some product called Dynix, quite distinct from IBM's AIX licensing.
Interestingly, this contract is with Sequent, not IBM. They're now alleging that Sequent gave IBM (it's parent) the code, breaching this contract. But seeing as IBM is a different company than Sequent, surely they were not under an obligation to keep that code to themselves; Sequent fudged up by giving it to IBM, so why should IBM's license to AIX be revoked? The Sequent contract read, according to this press release, that derivative could should be treated "as if" it were UNIX code, not that it actually became the property of SCOX.
It looks to me that the code was a trade secret at Sequent ("treaded as if..") but they retained copyright. Then it got divulged to IBM, who even obtained the copyrights, and could disperse of it as they pleased. Liability is then ristricted to Sequent's officers who breached the contract with SCOX, and perhaps some IBM officers if it can be prover they coerced Sequent. IBM's AIX license and copyrights (and thus ability to GPLize) stand, IFF this press release contains the actual facts!
SCO employee? Check out the bounty
There is an interesting article "Novell letters throw new light on SCO-IBM case" published in The Age that discuss letters sent to SCO by Novell asserting that Novell has "the right to compel SCO to waive or revoke any of its (SCO's) rights under the contract [involving SCO, IBM, and Novell]." In the letters Novell basically tells SCO that SCO cannot terminate IBM's license. These letters were apparently used as exhibits in IBM's countersuit of SCO.
-- Signature withheld by popular demand.
I'm not talking about patents here, but about literal source code.
According the press release 'SCO's System V UNIX contract allowed Sequent to prepare derivative works and modifications of System V software "provided the resulting materials were treated as part of the Original [System V] Software." Restrictions on use of the Original System V Software include the requirement of confidentiality, a prohibition against transfer of ownership, and a restriction against use for the benefit of third parties.'
So IBM's patents aren't transferred or licensed to SCO, but if they write code for a System V derivative work (such as AIX) they can't use the code in Linux. The contract basically says 'All your AIX code are belong to SCO'
This is totally meaningless.
$ dig ir.sco.com
; <<>> DiG 9.2.0 <<>> ir.sco.com
;; global options: printcmd
;; Got answer:
;; ->>HEADER<<- opcode: QUERY, status: NOERROR, id: 64936
;; flags: qr rd ra; QUERY: 1, ANSWER: 3, AUTHORITY: 2, ADDITIONAL: 0
;; QUESTION SECTION:
;ir.sco.com. IN A
;; ANSWER SECTION:
ir.sco.com. 14393 IN CNAME cald.client.shareholder.com.
cald.client.shareho lder.com. 1793 IN CNAME client.shareholder.com.
client.shareholder. com. 1793 IN A 170.224.5.43
;; AUTHORITY SECTION:
shareholder.com. 14286 IN NS ns1.shareholder.com.
shareholder.com. 14286 IN NS ns2.shareholder.com.
;; Query time: 18 msec
;; SERVER:
;; WHEN: Wed Aug 13 11:08:36 2003
;; MSG SIZE rcvd: 132
This investor relations page is being hosted by someone else.
rooooar
This letter specifically gave back to IBM the rights of any code they created to enhance or extend the AIX/SYS5R4 OS.
This straight away rules out such claims unless SCaldera believe they can convince a Judge and Jury that the superceeding agreement is invalid in someway.
Something I rather doubt :)
Looking though the 2.4.21 sources it looks like RCU isn't even merged into the mainline kernel yet. As for NUMA, it effects all of about 20 files. So can somebody tell me where the hell SCO is finding 148 files of copied code!?! Hell, the core code in ipc, mm, and kernel is only 58 files.
mm/numa.c:
/*
* Written by Kanoj Sarcar, SGI, Aug 1999
*/
arch/x86_64/mm/numa.c:
/*
* Generic VM initialization for x86-64 NUMA setups.
* Copyright 2002 Andi Kleen, SuSE Labs.
* $Id: numa.c,v 1.6 2003/04/03 12:28:08 ak Exp $
*/
/*
* linux/arch/alpha/mm/numa.c
*
* DISCONTIGMEM NUMA alpha support.
*
* Copyright (C) 2001 Andrea Arcangeli <andrea@suse.de> SuSE
*/
I've just had a look at the original RCU patches contributed by IBM for 2.4.1, (RCU web site, http://lse.sourceforge.net/locking/rcupdate.html)
One of the copyright notices from a file:
Support for deferred freeing of memory using Read-Copy Update
mechanism.
Copyright (c) International Business Machines Corp., 2001
This program is free software; you can redistribute it and/or modify
it under the terms of the GNU General Public License as published by
the Free Software Foundation; either version 2 of the License, or
(at your option) any later version.
This program is distributed in the hope that it will be useful,
but WITHOUT ANY WARRANTY; without even the implied warranty of
MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the
GNU General Public License for more details.
You should have received a copy of the GNU General Public License
along with this program; if not, write to the Free Software
Foundation, Inc., 59 Temple Place - Suite 330, Boston, MA 02111-1307, USA.
Author: Dipankar Sarma [dipankar@sequent.com]
(Based on a Dynix/ptx implementation by
Paul Mckenney [paul.mckenney@us.ibm.com])
IBM aquired Sequent in 1999, the copyright notice on this file from 2001. The important thing is that this code is based on an implementation and not the actual original code as such this is not Dynix/pty code.
SCO could argue that since it is based on the code then it is actually a copy, however from what I have seen of the contract clauses (mainly from groklaw) IBM are free to use any knowledge/processes/etc gained from adding to AIX.
Probably the two pieces of code look similar and I can believe even the comments since the implementor had access to original code. In addition to this it could be argued that it would be impossible to implement the code without there being similarities or even being nearly identical in places. For example try implementing a bouble-sort/linked list/etc without the code looking similar.
The only thing left are the RCU patents and IBM own these.
Having looked at this now SCO's case is pretty thin, they could win of course nothing is impossible (though unlikely), however it would just be a case of copyright violation and someone outside of IBM could do a re-implementation of RCU. In addition since RCU is n't part of the mainstream Linux kernel so I cant see how they could claim any substantial damages let alone $3 billion.
Actually the GPL is not anywhere near as viral as this license - if (big if) it means what SCO say it does.
The GPL doesn't take away any rights _you_ have to _your_ code, including adding it to other products under other licences. What it says is that if you combine your code with other GPL code you have to release the result under the GPL.
SCO seem to be claiming that if you add your code to their unix code, it isn't just the resulting unix variant that is a derivative work, but your code (in isolation) is also.
If SCO are correct, if you took code from another of your products and added it to Unix you would lose the right to ship that other product. That wouldn't happen if you added that code to a GPL product.
If you check out the Nasdaq stock report for sco the following shareholders with >5% is shown:
Ralph Yarro
Darcy Mott
Canopy Group Inc
John Wall
If you then check out The Canopy Group website you will see the following as board members
Ralph Yarro - CEO & Presedent
Darcy Motto - Vice President, Treasurer and Chief Financial Officer
This gives the Canopy group at least a 15% stake in SCO, possibly more.
If you look at SCO's board and then have a look at their share trading, you see the following:-
Charles BROUGHTON (VP world ops) sold about 120,000 USD worth of shares in the last two months
Robert BENCH (CFO) sold about 120K USD in last few months
Jeff HUNSAKER (s. VP)sold about 120K USD in last few months
Other than McBride (CEO) most of the board have ofloaded shares in the last month or two. To give you an idea of the "peak" of share selling. According to the Nasdaq the number of "insider" trades (i.e. board members) in the last 12 months was 15, and 12 (all of which were sales) of those were in the last 3 months (or as its know just after the Linux thing).
Yarro and Mott both also sit on the board of SCO.
Does that stink or is it just me?
Jaj
I don't thing a court would issue an injunction against IBM, as that would effectively nullify IBM's contract. I can't see that happening. And IBM doesn't have to worry about SCO's termination their license. SCO can't terminate the license, period. It's written in contracts.
From SCO's Exhibit D
Note the terms irrevocable and perpetual. I don't think it can be made any plainer.
Exhibit F
Exhibit G
I agree with the meat of your analysis about Sequent. I don't know enough contract law to comment on SCO's thesis about Sequent.
The Linux RCU code is not from AIX nor Dynix, please read this post: http://slashdot.org/comments.pl?sid=74586&cid=6686 573
- 24-Copyr ights_Story01.html
Infact SCO admit they down own the copyrights to RCU, NUMA or JFS as per this story:
http://mozillaquest.com/Linux03/ScoSource
Cutting through the noise SCO are claiming that IBM can not add technology added to AIX to Linux it's more to do with contracts than copyrights.
People still don't seem to get it...
:->
IBM != Sequent (for year values less than 1992)
IBM had a contract/license variation with AT&T. Sequent did not. Anything IBM developed, IBM owned. Anything Sequent developed (before being bought and becoming part of IBM), based on the original AT&T license, belongs to the owner of SYS V, so the (rights to the) developements did not belong to Sequent and could not be sold to IBM in '92, so IBM does not own them, never did own them, and can not give them away - they belonged to Novell, and now to SCO.
Could this possibly be a (perhaps THE) legal leg for SCO's lawsuit?
This reply completely does not address your admittedly very good point about the patents, as I don't know how the license issue would afftect the patent issue. I.e., can I patent an idea that legally belongs to someone else, even thought it was my idea and I submitted it myself? I would guess 'yes', but it would depend greatly on the exact wording of any contracts/licenses - and we are right back to the license issue. Also, would you be able to charge me license fees on the idea you own, but I patent? Could I charge you for using my patent if you legally own the idea?
My head is starting to hurt...
Acts of massive stupidity are almost never covered by warranty. --me.