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March 25, 2003

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Has IBM Contaminated Linux Kernel or GNU/Linux Source Code with SCO-Owned Unix Code?

SCO-Caldera v IBM: IBM Replies to Some SCO Allegations but Hides Lots Too

By Mike Angelo -- 26 March 2003 (C) -- Page 2

Article Index

SCO-Caldera v. IBM:

SCO-Caldera & the GNU/Linux Community:

Note: Until 2001, the Santa Cruz Operation (SCO), a UNIX company, and Caldera International (CALD), a Linux company, were two different companies. In 2001, Caldera acquired SCO. Then in 2002 Caldera changed its business name to the SCO Group. However, the corporate name remains Caldera International.

Many people still think of the SCO Group's Linux operations as Caldera. In order to make sure that readers would know and realize throughout the article that what is now the SCO Group is also the company once called Caldera, the SCO Group is often referred to as SCO-Caldera in this article.

The Caldera v IBM Complaint and Legal Procedure

We asked the IBM people some questions about the Caldera v IBM Complaint and legal proceedings. As you can see, IBM has some very interesting options in how it can proceed with its defense against SCO-Caldera.

MozillaQuest Magazine: What is the case number for the suit?

MozillaQuest Magazine: When was IBM served a copy of the Caldera lawsuit?

This question is important because the date of legal service starts a clock setting the date by which IBM must file an answer or response to Caldera's Complaint or run the risk of losing by default. That's not to say anyone would expect IBM to default in this lawsuit. But knowing the date of legal service does let everyone know by when IBM would be expected to respond in court to SCO-Caldera's Complaint.

MozillaQuest Magazine: Will an in-house IBM attorney or an outside counsel be appearing on behalf of IBM in the Caldera lawsuit?

MozillaQuest Magazine: What is/are the name(s) of counsel that will be appearing on behalf of IBM in the Caldera lawsuit?

IBM refused to answer these questions too.

Now, here come some very interesting options that IBM can exercise if it so chooses.

Looking over the Utah Rules of Civil Procedure (Utah R.C.P.), it appears that IBM has several initial options in responding to the Caldera Complaint including, inter alia:

  • file an answer,
  • file preliminary objections and/or a motion to dismiss,
  • file a Rule 11 motion for sanctions, and
  • file a counter-claim).

Simply put, under Utah R.C.P. Rule 11 the trial court may impose sanctions if it finds that SCO-Caldera and/or its lawyers told lies in the Complaint. And from the interviews we so far have published, it sure does look like SCO has told some hum-dingers in its Caldera v IBM Complaint.

MozillaQuest Magazine: Which, if any, of these options does IBM plan to exercise?

IBM refused to answer this question.

Under the Utah Code, Title 76, Chapter 08 -- Offenses Against the Administration of Government, Section 504:

A person is guilty of a class B misdemeanor if:

(2) With intent to deceive a public servant in the performance of his official function, he:

(a) Makes any written false statement which he does not believe to be true;

Judges are public servants who in their roles as judges perform official functions. So, if it can be proved in a criminal court proceeding that SCO-Caldera's officers and lawyers knew the Caldera v IBM Complaint, a written statement, is false and they intended to deceive the judge, a public servant, then those SCO lawyers and officers could be convicted of a class B misdemeanor under Utah's criminal laws. Or at least that seems to be what the black-letter law reads. Isn't that interesting?

Perjury Note:

Seeking criminal prosecution of SCO-Caldera, its officers, and its lawyers for making false statements in SCO's Caldera v IBM Complaint, if they did so, is not restricted to IBM. Any individual or organization, such as an individual member of the Linux community or a Linux-related organization such as the Kernel.Org Organization, the GNU / Free Software Foundation, the Open Source Initiative group, or whomever could ask Utah State and/or Salt Lake prosecutors to file charges against SCO-Caldera, its officers, and/or its lawyers under Utah Code, Title 76, Chapter 08, Section 504. Isn't that interesting?

MozillaQuest Magazine: Our several interviews with prominent, expert, and well-respected members of the Linux kernel, GNU/Linux, Linux development, and Linux distribution provider community indicate that there are many false statements contained within the SCO-Caldera Complaint. Will IBM seek to have the appropriate Salt Lake and/or Utah State law enforcement people arrest and prosecute whoever made the false statements contained within the Caldera v IBM Complaint?

IBM through its spokesperson Mike Fay refused to answer any of these questions referring to an IBM policy to not respond to questions about lawsuits.

That's mostly a fair response here. It is understandable that IBM might not want to comment on whether IBM will respond in Court with an answer, preliminary objections, motion to dismiss, a motion for sanctions under Utah R.C.P 11, and so forth. That goes to legal strategy and legal options -- it does not go to the issues or the merits of the claims -- it does not go directly to the facts of the case.

However, there is no reason that IBM cannot tell us what is the case number and when IBM was served legal process in this suit. That's just plain old corporate stone-walling.

It appears the allegations of SCO-Caldera's Complaint fall into two broad categories:

  • Allegations regarding Linux, the thrust of which appears to be that without the alleged actionable conduct of IBM, Linux the kernel, the GNU/Linux operating system, and Linux distributions would be little more than toys and bicycles that are not server/enterprise grade products, and
  • Allegations regarding IBM violating its contracts, licenses, agreements, and so forth with SCO and its predecessors in title to the AT&T Unix source code and paper and thereby damaging SCO-Caldera -- including accusations that IBM unlawfully has contaminated the Linux Kernel, GNU/Linux, and/or Linux distribution source code with proprietary, SCO-owned Unix source code, techniques, and so forth.

See The Linux Related Allegations on Page 3 ----->

Please see the first two parts of our series about SCO-Caldera's IP claims plus its intentions to enforce and license its intellectual property rights.

SCO-Caldera & the GNU/Linux Community: The SCOsource IP Matter

SCO-Caldera & the GNU/Linux Community: Part 2, Under the Iceberg's Tip


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