More discussion with Bill Claybrook -- Derivative Works and More

MozillaQuest Magazine: It seems there might be two approaches to the derivative code claims that SCO-Caldera makes. Under one approach, SCO-Caldera claims that what it defines as derivative code is prohibited from un-authorized distribution under its licensing agreements. It seems that SCO-Caldera's only recourse under the licensing approach is only against Unix licensees that misappropriate the code.

The other approach would involve copyright and/or patent infringement. Do the IBM journaling file system, NUMA technology, and RCU code fall under derivative work as defined by the copyright act (17 U.S.C. 101)?

Bill Claybrook: This is one of the main thrusts of the lawsuit against IBM. Ask David Boies. Apparently his law firm thinks so.

MozillaQuest Magazine: Under U.S. copyright law, a ''derivative work'' is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ''derivative work''. (17 U.S.C. 101)

MozillaQuest Magazine: If the journaling file system, NUMA technology, and RCU code fall under derivative work as defined by the copyright act, what sorts of problems does this present for the GNU/Linux community?

Bill Claybrook: If the GNU/Linux community includes those folks who want to see Linux thrive in the enterprise and replace Unix in the market segments where Unix currently dominates like I certainly do, and deny Windows its place in the datacenter, then an unfavorable ruling against IBM and derivative works slows down the Linux train for enterprise users.

One reason that Linux is being developed faster than any other modern operating system is that it has benefited from what is being referred to as derivative work. Obviously, there are alternatives to JFS in the open source community, but it takes lots of person years in some cases to develop well tested, complex code like the Sequent NUMA technologies.

--Bill Claybrook: I did some additional research into the history of the development of DYNIX/ptx at Sequent where the NUMA code was developed and this is what I found.

--Bill Claybrook: DYNIX developed at Sequent years ago was derived from BSD 4.1 with patches from 4.2 and new code by Sequent. DYNIX/ptx, also developed at Sequent was really BSD code with System V wrappers. So the code was really still BSD code, the kernel code that is. It appears then that the NUMA kernel code was developed on the BSD code. I was told that the NUMA code was given to Linux by IBM. Now the question is was the old Sequent NUMA code actually ported over to AIX and then given to Linux or was the NUMA code that was given to Linux actually based on the old Sequent BSD stuff?

--MozillaQuest Magazine: How does this affect copyrights and derivative works concepts?

--Bill Claybrook: I think that what this means is that the court will have a lot of work to do to determine where all of this code came from and who owns it.

Bill Claybrook: Based on the research that I have done over the past few days, companies that bought source licenses to System V and created extensions to it for their own use, gave some of this code back to System V and so apparently some of this code may still be in System V. Sequent apparently gave a lot of code back to System V as well as other companies.

--MozillaQuest Magazine: Is this code that was given back to System V, something that copyright-wise, the licensee would own or that the Unix-code owner would own?

--Bill Claybrook: I don't know.

Bill Claybrook: Also I was told that at IBM, the folks who work on Linux get a week's worth of training on IP before they begin to work on Linux.

MozillaQuest Magazine: There has been lots of (more in the nature of speculative) commentary that IBM is careful about IP matters. But this week of IP training really reinforces that.

MozillaQuest Magazine: Unless, I am misunderstanding something or am overlooking something, it appears to me from your report and your answers to my questions that so far SCO-Caldera has failed to produce any evidence that Linux was derived from Unix. Likewise, so far SCO-Caldera has failed to produce any evidence that there is any SCO-owned Unix code in either the kernel.org Linux kernel or the GNU/Linux operating system (OS). Would you agree with hat?

Bill Claybrook: I cannot say that I know one way or the other, the answer to your question. We never addressed either of those questions.

MozillaQuest Magazine: OK. So, I guess that would mean that SCO did not show you any such evidence?

Bill Claybrook: Yes

[Here are a few more follow-up questions.]

MozillaQuest Magazine: Did you go out to SCO's Utah HQ to view the code or did someone(s) from SCO bring it to you?

Bill Claybrook: I saw the code in Boston.

MozillaQuest Magazine: OK, I guess that was Sontag that came up there to show you the code. I think he did the same thing with Laura DiDio, Yankee Group.

MozillaQuest Magazine: BTW, was the NDA that you had to sign the same one that Don Marti (Linux Journal Editor) posted? [Link in Resources section on page 4.]

Bill Claybrook: I don't recall all of the details, although I did go through it and ask questions about what I could talk about, which was everything except the name of the .c kernel function.

MozillaQuest Magazine: One of SCO's claims is that "Linux" was derived from Unix. On the basis of your code-viewing, are you able to form an opinion that "Linux" was derived from Unix?

Bill Claybrook: No

MozillaQuest Magazine: On the basis of your code-viewing, are you able to form an opinion that there is SCO-owned Unix code in the kernel.org Linux kernel?

Bill Claybrook: No

MozillaQuest Magazine: On the basis of your code-viewing, are you able to form an opinion that there is SCO-owned Unix code in the GNU/Linux operating system?

Bill Claybrook: No

MozillaQuest Magazine: On any basis, are you able to form an opinion that "Linux" was derived from Unix?

Bill Claybrook: No.

MozillaQuest Magazine: On any basis, are you able to form an opinion that there is SCO-owned Unix code in the kernel.org Linux kernel?

Bill Claybrook: No.

MozillaQuest Magazine: On any basis, are you able to form an opinion that there is SCO-owned Unix code in the GNU/Linux operating system?

Bill Claybrook: No.

Bill Claybrook: "And frankly, I don't care who wins, I just want it to be over with so Linux can continue to grow. This is how I make my living. Nothing would upset me more than if this lawsuit was a knockout blow to Linux."

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