INTAC_Internet_Access_Web_Hosting Linux for Windows Users MozillaQuest MQ Logo
MozillaQuest the on-line computer magazine
July 27, 2003

TotalShells.com

EPIX Internet Services
MozillaQuest Magazine Front Page button

Internet & Web browsers button

custom Netscape & Mozilla themes & skins button

Digital Photography

Graphics

IRC - Internet Relay Chat - Chat button

Linux buttonLinux for Windows Users

Mozilla button

Multimedia

Netscape button
network articles

tutorial - help - how to button

Web Page Design

Web Tools

Windows button
..

Is IBM's Irrevocable Unix License Revocable?

SCO-Caldera v IBM Complaint Changed Dramatically

Does SCO's Amended Complaint Meet Burden for Summary Judgment?

By Mike Angelo -- 27 July 2003 (C) -- Page 1

MozillaQuest Op-Ed

Article Index

Editor's Note: In today's article we look at the SCO-Caldera v IBM lawsuit pretty much taking the allegations of SCO-Caldera's Amended Complaint as true. However, in our companion article, Are SCO's Rebuilt IBM Lawsuit and Unix License Revocation Winners -- Or More SCO FUD?, we look at some of the holes in SCO-Caldera's claims. Also, just as this article was on its way to layout, we received the e-mail from SCO's Blake Stowell agreeing that SCO does not own the copyrights to the IBM-developed code IBM contributed to the Linux kernel. Please see our article, SCO Agrees IBM Owns AIX, JFS, NUMA, RCU Copyrights, for the latest updates about that code and how it applies to the SCO v IBM lawsuit.

SCO-Caldera v. IBM:

SCO Clears Linux Kernel but Implicates Red Hat and SuSE

IBM Files Answer to SCO's Caldera v IBM Complaint

IBM Response to SCO-Caldera Complaint Is Outrageous!

SCO Has Not Found Its Code in Kernell.Org Linux Kernel or in GNU/Linux OS -- Conectiva, Mandrake, and SuSE Say No SCO in Their Code

Kernel.Org and GNU/Linux Developers Have Clean Code Safeguards -- Is SCO Trying to Dictate Linux Kernel and GNU/Linux Development Procedures?

Novell Says SCO Does Not Own Unix IP -- SCO Says it Does -- Novel Enters the SCO IP Fray with No Proof and More FUD

IS SCO NDA Sideshow Setting a Trap for Analysts and Linux Developers?

SCO +1, Novell -1 in SCO v Novell Unix-IP Feud -- Novell loses big round in Unix IP fray with SCO-Caldera


SCO-Caldera & the GNU/Linux Community:

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.

Note: the prohibition about unauthorized copying of copyrighted works is the catch that puts software end-users on the hook. When a computer user copies software from a removable distribution media onto his/her hard drive or downloads software onto his/her computer hard drive or other computer media, that person is performing one of the actions reserved for owners of copyrights and their licensees. Unless that user has a license from the copyright owner to copy the software from one place to another, the user commits a copyright infringement when so copying the software. The copyright laws give the owner of the copyright the exclusive right to make copies. Installing software onto a computer involves making a copy. (IP attorney Thomas Carey)

In a copyright infringement case it makes little difference when showing infringement how the allegedly purloined code got into Linux. If SCO-Caldera copyrighted Unix code is in Linux there is an infringement -- and anyone copying or distributing that code is an infringer. However, the SCO v IBM lawsuit is not about infringement and so far SCO has not been able to show any copyright infringements in the kernel.org Linux kernel or the GNU/Linux operating system.

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.)

  • See Might SCO's Amended Complaint Meet Burden for Summary Judgment? on Page 2 ----->

  • 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


    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

    About the "Hey SCO, sue me" Petition


    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
    Recent Articles

    Gaël Duval Tells Why Mandrake Linux Is Better Than MS Windows

    Gaël Duval and Mike Angelo Discuss The HP-Mandrake Computer

    HP to Ship Desktops with Mandrake 9.1 Linux Pre-Installed - Good News for Mandrake Linux and Fans

    Mozilla 1.4 Browser-Suite -- AKA Netscape 7.1

    Gaël Duval and Mike Angelo Discuss Mandrake Business Products and Finances

    SuSE Linux Desktop Available

    About the Hey SCO, sue me Petition

    Mandrake Linux 9.1 Retail Packs

    Linux for Windows Users -- Linux Networking for Windows and Desktop People -- Mandrake 9.1 and LinNeighborhood

    Gaël Duval and Mike Angelo Discuss the New AMD64 OS --

    Mandrake Linux Corporate Server 2.1 for AMD Opteron

    SuSE Linux Enterprise Server 8 for AMD64 Released

    Major Morphing in Mozilla Project Organization and Objectives Proposed

    Red Hat Linux 9 Distribution Released

    Mandrake Linux 9.1 Released

    SCO-Caldera v IBM:

    Mandrake 9.1-RC1

    Netscape 7.02 Browser-Suite

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

    Mozilla 1.0 updated!

    Don't Forget the Books

    Linux Makes a Great Gift

    Christmas Season Holidays & Computer Suggestions 2002

    Netscape 7.01 Browser-Suite

    Mozilla 1.2.1 Browser-Suite Released

    Buggy Mozilla 1.2 Recalled

    Mandrake Linux 9.0, Desktop Magic You Can Use: A First Look

    Linux for Windows Users:

    Using LinNeighborhood to Create a Network Neighborhood for Linux

    SuSE Linux 8.1

    Zero Tolerance for Privacy and Security Bugs

    Mozilla and Netscape JavaScript Bugs Compromise Privacy and Security

    Red Hat Linux 8.0 Is LSB Certified

    Mandrake 9.0 is LSB Certified

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

    UnitedLinux: A Standard or a Distribution?

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

    Holger Dyroff, Gaël Duval, Mark de Visser and Mike Angelo Discuss LSB, UnitedLinux, and the Linux Market

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

    Netscape Communicator 4.8 Browser-Suite

    Red Hat Calls on Linux Comunity for Beta Feedback

    MandrakeSoft Calls on Linux Community for Beta Testers

    Scott McNeil and MozillaQuest Magazine Discuss LSB

    New Mozilla Roadmap Sets 1.1 for 9 August 2002 and Effectively Kills Mozilla 1.0.x

    MandrakeSoft Says Yes to LSB but No to Netscape and UnitedLinux

    Mozilla 1.0 Browser-Suite's E-Mail & News Quick Look

    Mozilla 1.0 Browser Quick Look

    Tabbed-Browsing Coming to KDE's Konqueror Browser

    A Quick Look at Mozilla 1.0 Browser-Suite Performance -- Speed, Stability, and Memory Hogging

    Mozilla 1.0 is Officially Out!

    A Quick Look at Some Mozilla 1.0 Browser-Suite Annoyances, Bugs, And Issues

    Mozilla 1.0 Not Ready for Prime Time -- Close but No Cigar and No Brass Ring!

    Turmoil in MozillaLand:

    Mozilla 1.0 Browser Unofficial Sneak Release

    AbiWord 1.0.1 Quick Look - MS Word Clone for Linux, MS Windows, & Other Platforms

    KDE 3.0 Released

    MozillaQuest Magazine 2001 Editor's Choice Hardware Picks

    Getting Started with Wireless Network Technology

    Part III: Adding Wireless to a Linux-Based Laptop or Notebook

    Is Mozilla Actually AOL-Netscape's Mozilla?

    Bugzilla 2.16 & Bugzilla 2.14.1

    Year 2001 in Review -- Mozilla and Netscape Browsers

    Free Software for Your New Christmas Computer -- Or Any Computer for That Matter

    Linux Gifts for Christmas, Holiday, and All Occasions