SCO amended its Caldera v IBM Complaint on 16 June 2003. The Amended Complaint changes the Plaintiff's name from Caldera to SCO, now making the case SCO v IBM rather than Caldera v IBM.

The requests for relief go from four counts (causes of action) to six counts. And, the length moves from a 144-paragraph Complaint to a 182-paragraph Amended Complaint. Although it is now more than thirty days since SCO-Caldera filed its Amended Complaint, IBM has not yet filed an answer to the Amended Complaint.

Perhaps the three most dramatic changes in the SCO-Caldera v IBM lawsuit Amended Complaint are

(1) the addition of recitals asking the Court to revoke IBM's Unix/AIX license,

(2) dropping the allegations that Linux was derived from Unix, and

(3) addition of recitals that IBM and Sequent developed extensions to Unix such as JFS, NUMA software, RCU, and so forth are part of SCO-owned Unix through derivate work clauses in the Unix licensing agreements. (IBM now owns Sequent.)

More about all this further along in the article. (Please see Friday's article, SCO Agrees IBM Owns AIX, JFS, NUMA, RCU Copyrights for the latest updates on this code as it relates to the SCO v IBM lawsuit.)

Although still anti-Linux, the anti-Linux posture of the SCO v IBM Amended Complaint is toned-down -- some. On the other hand the Amended Complaint mentions Linus Torvalds, by name, six times. The original Complaint mentioned Linus Torvalds, by name, only once. The tone in which SCO-Caldera mentions Linus Torvalds in its Amended Complaint is far from friendly.

The impression we formed upon reading the original 144-paragraph Complaint was that SCO-Caldera is all bent out of shape because SCO is losing UNIX business -- because its UNIX customers are switching to Linux. The gravamen of that hits you in the face when you read paragraphs 82 to 86 of SCO-Caldera's original Complaint. A reading of the Amended Complaint does not change that impression. (Links in Resources section at end of article on page 5.)

Nevertheless, the only defendant named in this lawsuit is IBM (and its Sequent division). Moreover, none of the counts are for UNIX source-code copyright infringement. That is very important. This SCO-Caldera v IBM lawsuit is not about copyright infringement as encompassed by the U.S. Copyright Act. (17 U.S.C. 101, et. seq.)

Perhaps the reason that none of the counts in the SCO v IBM lawsuit are for UNIX source-code copyright infringement is that SCO agrees that IBM owns the IBM-developed AIX, JFS, NUMA software, and RCU copyrights.

The bottom line is that under its Amended Complaint SCO now seems to have a very strong case against IBM and companies, organizations, and others who sub-license Unix and/or IBM's AIX operating systems from IBM -- if you take SCO's Amended Complaint allegations as true. It appears that SCO stands a good chance of making its termination of IBM's Unix license stick -- if you take SCO's Amended Complaint allegations as true.

What actually happens depends largely on whether SCO-Caldera can make good its claim that JFS, NUMA software, RCU, and so forth are part of SCO-owned Unix through derivate work clauses in the Unix licensing agreements. More about that further along in this article.

If SCO-Caldera can make its termination of IBM's Unix license stick that would mean that anyone using AIX is using it without proper authorization to do so. If so, and if you are one of these people or entities, you might find yourself on the receiving end of a SCO lawsuit -- except perhaps for some very interesting language in Amendment X. More about that further along in this article and our companion article, Are SCO's Rebuilt IBM Lawsuit and Unix License Revocation Winners -- Or More SCO FUD?.

For a different perspective, please see our article IBM, SuSE, and Richard Gooch Deny SCO-Caldera Copyright Claims -- Is SCO-Caldera Trying to Pull an Extortion Scam? and our companion article, Are SCO's Rebuilt IBM Lawsuit and Unix License Revocation Winners -- Or More SCO FUD?.

SCO v IBM Is About Contracts, Not Copyright Infringements

This distinction is very important. This lawsuit is about breach of contract and other tort claims. It is not about copyright infringement, per se.

Some people, reporters, and forum commenters are getting that confused. If you are one of those reporters or forum commenters that is confused and not making this distinction, please do whatever you have to do to get up to speed on this -- because until such time as you do that, you are adding to the FUD regarding the SCO IP issues -- and there is more than enough FUD (fear, uncertaintiy, doubt) already.

One reason this distinction is so important is because the evidence and proof of facts required in a tort and breach of contract lawsuit are not exactly the same as the evidence and proof of facts required in a copyright infringement lawsuit. SCO-Caldera does not necessarily need to own the Unix copyrights or patents to win this tort and breach of contract lawsuit, although SCO-Caldera proving such would go to SCO-Caldera's advantage.

To establish copyright infringement SCO would have to show that it owns the copyrights. SCO also would have to show a line by line identity in the Unix and Linux source code or a derivative work situation as defined by U.S. copyright law, 17 U.S.C. 101.

There also is a cloud over SCO-Caldera's claims that it owns the Unix copyrights. Part of that cloud relates to whether Novell ever conveyed the Unix copyrights to SCO. Another part of that cloud relates to whether IBM developed AIX code, JFS, NUMA software, RCU, and so forth are derivative works and whether they belong to IBM or to SCO under the Unix licensing agreements.

Moreover, Thursday SCO Director of Corporate Communications, Blake Stowell, told MozillaQuest Magazine that SCO-Caldera does not own the copyrights for IBM-developed AIX, JFS, RCU, NUMA software and other such IBM-developed code that IBM contributed to the Linux kernel. In that discussion Blake Stowell repeatedly emphasized that this lawsuit is about breach of contract and not about copyright infringement.

What SCO-Caldera has presented in its private showings of allegedly purloined SCO-owned Unix code in Linux is 80-lines of identical code in a comparison of Unix System V code to kernel code in an unnamed IHV's Linux-based system. SCO has not examined official kernel.org Linux kernel code or GNU/Linux operating system code for purloined SCO-owned Unix code.

To establish breach of contract under the licensing and other contracts SCO has with IBM, SCO merely has to show that IBM disclosed parts of its Unix/AIX code to the GNU/Linux community or merely disclosed Unix/AIX methods, concepts, or trade secrets to the GNU/Linux community -- and that such conduct is not allowed under the licensing agreements and contracts.

What SCO-Caldera has to prove to win this tort and breach of contract lawsuit is that IBM violated its contractual agreements with AT&T, Novell, and SCO regarding Unix. The AT&T and Novell contracts come into play because SCO-Caldera acquired them when SCO purchased Novell's Unix business in 1995. Novell acquired Unix from AT&T in 1993.

More about this further on in this article. Also, in our companion article, Are SCO's Rebuilt IBM Lawsuit and Unix License Revocation Winners -- Or More SCO FUD?, IP attorney Thomas Carey takes a closer look at these Unix license contracts and whether IBM violated them. (It's a very interesting discussion. So please make sure to check the MozillaQuest Magazine front page to see when it is published.)

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