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March 31, 2003

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IP Attorney John Ferrell and MozillaQuest Magazine's Mike Angelo Discuss the Lawsuit

SCO-Caldera v IBM:

IBM Moves Lawsuit from State to Federal Court

Linux and the SCO-Caldera v IBM Lawsuit

By Mike Angelo -- 31 March 2003 (C) -- Page 2

Article Index


SCO-Caldera v. IBM:


SCO-Caldera & the GNU/Linux Community:

Summary and Conclusion

IBM has caused the Caldera v IBM lawsuit to be moved from the Salt Lake County, Utah state court to the U.S. District Court for the District of Utah. Other than perhaps taking away what would amount to a hometown advantage for SCO in the local state court, the move likely will not affect the merits of SCO's Caldera v IBM lawsuit. It also could open a door for SCO-Caldera to add claims of copyright infringement.

As to the merits of SCO-Caldera's claims, IBM pretty clearly has denied and rejected SCO-Caldera's claims that try to belittle the Linux kernel, the GNU/Linux operating system, Linux developers, and the Linux community. So have prominent, expert, well-respected, members of the Linux kernel and GNU/Linux community. Therefore, everyone pretty much universally rejects those allegations, except perhaps for the SCO-Caldera people and lawyers. For more about that, please see our previous articles, Linus Torvalds Comments on SCO-Caldera's Linux-Related Allegations, Conectiva's Gordon Ho Responds to SCO-Caldera's Linux-Related Allegations, and Alan Cox, Richard Gooch, and Dave Weinehall Respond to SCO's Linux-Related Claims.

There are two operative Complaint paragraphs that particularly address SCO-Caldera claims that IBM contributed contaminated code to the Linux community and that it misappropriated and misused SCO-Caldera proprietary and/or confidential secrets, methods, technology, and know-how to aid in Linux development -- paragraphs 91 and 92. IBM refuses to deny these more legally serious SCO-Caldera charges. That suggests that these SCO-Caldera claims might have some merit. For more about that, please see our previous article, IBM Replies to Some SCO Allegations but Hides Lots Too at page 5.

SCO-Caldera, in its broadly and vaguely pled Caldera v IBM Complaint, alleges that Linux distributions have benefited from IBM's contamination of the Linux code-base with SCO-owned Unix code and/or from IBM's misappropriation and misuse of SCO-Caldera proprietary and/or confidential methods, technology, and know-how to aid in Linux development. See for example paragraph 100 of the Caldera v IBM Complaint.

Note: Please notice here an example of SCO-Caldera's sloppy pleading practice and the resulting confusion and folly that flow from it. SCO-Caldera and its lawyers use the term Linux. However, they fail to state specifically whether they mean the Linux kernel, GNU/Linux, Linux distributions, and/or Linux applications.

For more about the use of the terms GNU/Linux and Linux, please see Richard Stallman's essay Linux and the GNU Project. A link is in the Resources section at the end of this article.

100.  Based on other published statements, IBM currently has over 7,000 employees involved in the transfer of UNIX knowledge into the Linux business of IBM, Red Hat and SuSE (the largest European Linux distributor). On information and belief, a large number of the said IBM employees currently working in the transfer of UNIX to Linux have, or have had, access to the UNIX Software Code. (Caldera v IBM Complaint)

So far, IBM, Red Hat, and SuSE have failed to deny publicly SCO-Caldera's allegations that Linux distributions have benefited from IBM's contamination of the Linux code-base with SCO-owned Unix code and/or from IBM's misappropriation and misuse of SCO-Caldera proprietary and/or confidential methods, technology, and know-how to aid in Linux development. That suggests that these SCO-Caldera charges might have merit.

SCO does not specifically mention Conectiva in its Caldera v IBM Complaint as a beneficiary of IBM's alleged misconduct. However, Conectiva is a Linux distribution and SCO does at times does mention Linux distributions generally in its Complaint. Conectiva, a UnitedLinux associate of both SCO-Caldera and SuSE, has denied SCO's Caldera v IBM claims. Isn't that interesting?

Something to keep in mind here is that a Linux distribution packager, such as Red Hat or SuSE, starts with GNU/Linux, which is a Linux kernel with additional code added to make it a complete, but basic, operating system (OS). Then the Linux distribution provider might modify and/or tweak the Linux kernel and/or the GNU/Linux OS to make the basic OS meet its performance and/or marketing-hype standards and requirements.

Next, the Linux distribution provider such as Red Hat or SuSE usually adds installation and configuration tools, documentation, drivers, utilities, desktops and window managers, servers, applications, and so forth to the basic GNU/Linux OS. All that taken together is a Linux distribution.

The point here is that IBM could have provided SCO-owned source code to Red Hat or SuSE that they might have added to their modifications of the Linux kernel and/or GNU/Linux OS code -- without the original kernel.org or GNU code being contaminated. Additionally, IBM's alleged misappropriation and misuse of SCO-Caldera proprietary and/or confidential methods, technology, and know-how to aid in Linux development could have been something that happened at the Red Hat and/or SuSE distribution packaging level rather than at the more basic Linux kernel and/or GNU/Linux OS level.

Add to this mix a few other facts. Red Hat and SuSE both are vigorously pursuing the server/enterprise markets. Both Red Hat and SuSE have expensive, high-end, Linux distribution packages especially developed for the server/enterprise markets.

In other words, the monkey-business that SCO-Caldera alleges might not involve the Linux kernel, GNU/Linux, and/or the Linux community as a whole -- rather just IBM, Red Hat, and/or SuSE. Isn't that interesting?

As John S. Ferrell noted in our discussions, IBM's defense in this cause of action likely will be that the technology disclosed in support of Linux was either 1) not a trade secret because it was previously known or disclosed by others, or 2) owned by IBM as technology embodied in other or earlier IBM operating systems. Isn't that interesting?

Suppose on the one-hand SCO does manage to prove that IBM provided Red Hat or SuSE with some technology in the aid of Red Hat and SuSE Linux distribution development. Suppose also that IBM can prove that the subject technology was already publicly known or that IBM had knowledge of that technology through its own operating-systems development prior to gaining knowledge of SCO's similar technology. In that case the alleged IBM contribution of technology to Red Hat and SuSE is on the up and up -- and IBM wins. If not, SCO-Caldera wins.

In previous interviews, Alan Cox (2.2 Linux kernel maintainer), Richard Gooch, PhD, (The linux-kernel mailing list FAQ maintainer) and David Weinehall (2.0 Linux kernel maintainer) have noted that Unix methodology and know-how are pretty much well-known and no big secret. So have Linus Torvalds and Conectiva's Gordon Ho.

Thus, on the one-hand IBM's failure to deny these SCO allegations suggests there might be some merit to SCO's Caldera v IBM Complaint. However, The defense that John Ferrell suggests might just work in light of what Alan Cox, Richard Gooch, Gordon Ho, Linus Torvalds, and David Weinehall have noted about Unix methods and know-how not being secrets.

In the end game, Caldera v IBM could end up as one of those he said, she said, controversies. In such a situation the outcome might be a matter of whom the jury believes. And in those situations, a jury could go either way.

Often in such situations, the parties prefer to settle their disputes rather than take chances on what a jury might decide. So, despite IBM's claims that it will mount and prosecute a vigorous defense, don't be surprised if the lawsuit ends in a settlement before a jury has a chance to return a verdict.

Only time and the court proceedings will tell.

Stay tuned. There is lots more to come.




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



Resources


Related MozillaQuest Articles


SCO-Caldera v IBM:


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

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


Caldera OpenLinux 3.1.1 Available

Caldera OpenLinux Workstation 3.1 -- A First Look


UnitedLinux, a Divisive Weapon for Caldera's Darl McBride -- Part I

UnitedLinux, a Divisive Weapon for Caldera's Darl McBride -- Part II

SCO's Darl McBride and MozillaQuest Magazine's Mike Angelo Discuss Caldera Linux and LSB

Caldera/SCO 3.1.1 OpenLinux Distribution Gains LSB Certification


Linux Makes a Great Gift

Don't Forget the Books

LinuxWorld in New York City -- 21-24 January 2003


Other Interesting MozillaQuest Articles



Copyright 2000-2003 -- MozillaQuest -- Brodheadsville, Pa..USA -- All Rights Reserved
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