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
..

MozillaQuest Op-Ed

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

SCO-Caldera v IBM Complaint Changed Dramatically

By Mike Angelo -- 27 July 2003 (C) -- Page 4

Is IBM's Irrevocable Unix License Revocable?

Article Index

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:

Derived Works -- JFS, NUMA, RCU, Etc.

Perhaps the biggest problem for both IBM and the GNU/Linux community might be the inclusion of JFS, NUMA software, RCU, and other such technologies into the Linux kernel. It seems, all things considered, that IBM did contribute these technologies to the Linux kernel developers. And SCO claims that it controls them under its Unix license agreements with IBM.

SCO now owns the set of licenses and agreements under which IBM is authorized to use, develop, and sub-license Unix and its AIX Unix-based operating system. Unix-wise, SCO is the licensor (master) and IBM is the licensee (servant).

SCO's position is that under these licenses and agreements JFS, NUMA software, RCU, and other such packages are derived works and therefore subject to the Unix licenses and agreements under which IBM uses Unix. Thus under SCO's perspective, to the extent that IBM did contribute these packages and technologies to the Linux kernel developers, IBM violated the Unix license agreements and is subject to breach of contract claims, and to Unix license revocation.

On the other hand, JFS, NUMA software, RCU, and other such code might not meet the definition of derived works under the U.S. Copyright Act (17 U.S.C. 101, et. seq.) In part that is because it appears that these are not part of Unix, per se, but rather are IBM extensions to Unix, that might not be covered by the Unix copyrights.

If JFS, NUMA, RCU, and other such code in the Linux kernel does not meet the definition of derived works under the U.S. Copyright Act (17 U.S.C. 101, et. seq.), that means that SCO might not have any copyright infringement claims against Linux kernel and GNU/Linux operating system developers, Linux distribution providers, Linux users, and so forth -- at least insofar as JFS, NUMA, and RCU are involved.

The point here is that on the basis of the pleadings to date in the SCO v IBM lawsuit, it looks as though SCO could win the lawsuit as to proving that IBM did substantial wrong by disclosing the JFS, NUMA, RCU, and other such code and technologies to the Linux kernel developers or to some IHV developers. However, that does not necessarily mean that SCO can win a copyright infringement suit against Linux kernel and GNU/Linux operating system developers, GNU/Linux distribution providers, GNU/Linux users, and so forth.

Moreover, SCO now has conceded that it does not own nor claim copyrights for JFS, NUMA, RCU, and other such code developed by IBM and contributed by IBM to the Linux kernel

Please remember that the SCO-Caldera v IBM lawsuit is not about copyright infringement under the U.S. Copyright Act, per se. It is not about the Linux kernel or GNU/Linux operating system, per se. The SCO v IBM lawsuit is about whether IBM breached its Unix license agreements with SCO.

However, in order to show that IBM did breach the Unix license agreements SCO needs to prove that the Unix extensions that IBM contributed to the Linux kernel developers (JFS, RCU, NUMA software, and so forth) are copyrighted by SCO or otherwise part of the Unix Software Product that IBM licenses from SCO.

SCO's admissions to MozillaQuest Magazine Thursday that it does not own nor claim copyrights for JFS, NUMA, RCU, and other such code developed by IBM and contributed by IBM to the Linux kernel takes the copyright element out of the SCO-Caldera v IBM lawsuit dispute. That means that SCO must now proceed solely on the theory that this code is part of the Unix Software Product that IBM licenses from SCO in order to prove breach of contract by IBM.

The addition of claims and allegations relating to JFS, NUMA software, RCU, and so forth are added to the original Complaint, inter alia, in paragraphs 108 and 109, which are part of Count I. Breach of IBM Software Agreement in the Amended Complaint. In the original Complaint, Count I was Misappropriation of Trade Secrets--Utah Code Ann. §13-24-1 et seq.

108. IBM has breached §2.05 of the Software Agreement by, inter alia, actively promoting and allowing use of the [Unix] Software Products and development methods related thereto in an open and hostile attempt to destroy the entire economic value of the Software Products and plaintiff's rights to protect the proprietary nature of the Software Products. By way of example and not limitation, IBM has used protected UNIX methods for others in accelerating development of the 2.4.x kernel and 2.5.x Linux kernel in, among others, the following areas: (a) scalability improvements, (b) performance measurement and improvements, (c) serviceability and error logging improvements, (d) NUMA scheduler and other scheduler improvements, (e) Linux PPC 32- and 64-bit support, (f) AIX Journaling File System, (g) enterprise volume management system to other Linux components, (h) clusters and cluster installation, including distributed lock manager and other lock management technologies, (i) threading, (j) general systems management functions, and (k) other areas. But for the use by IBM of these protected UNIX methods in Linux development, the Linux 2.4.x kernel and 2.5.x kernel capacity to perform high-end enterprise computing functions would be severely limited. (Amended Complaint)

109. IBM agreed in §7.10 of the Software Agreement to the following restrictions on transfer of the Software Product, including AIX as a derivative work of UNIX System V:

[N]othing in this Agreement grants to Licensee the right to sell, lease or otherwise transfer or dispose of a Software Product in whole or in part. (Amended Complaint)

However, Tom Carey does not believe that JFS, NUMA software, and RCU, are derivative works or that they come under the Unix Software Product restrictions.

I doubt that JFS, NUMA RCU and such other packages are derivative works of UNIX. They are not a recast version of UNIX; they are programs that have use when linked to UNIX. They are more appropriately classified as separate works. The question is, who owns the copyright in those works? The answer is likely to be found in the contracts between IBM and AT&T, and IBM and SCO. (Tom Carey)

IBM's Trink Guarino answers the question of who IBM says owns the JFS, NUMA software, and RCU copyrights.

First, Trink Guarino, Director of IBM Media Relations told MozillaQuest Magazine Monday:

SCO has not shown us any code contributed to Linux by IBM that violates SCO copyrights. SCO needs to openly show the Linux community any copyrighted Unix Code, which they claim is in Linux. (Trink Guarino)

Trink Guarino is correct in criticizing SCO and McBride for not supporting its allegations with any facts. Additionally, IBM is willing and able to support its position. Tuesday, Trink Guarino added this statement in our discussions:

IBM owns the copyrights for the work we've done in AIX, JFS, RCU and the code that takes advantage of NUMA hardware. AIX is the fastest growing UNIX operating system in the industry, and we intend to continue and accelerate that growth. (Trink Guarino)

That pretty much takes the wind out of SCO and McBride's sails as to its threats against GNU/Linux users -- and to their allegations that IBM misappropriated SCO-owned Unix code by contributing JFS, RCU, and NUMA software code to the Linux kernel. However, if SCO can convince the SCO v IBM Court that this code is part of the Unix Software Product, then SCO could prevail on its breact of contract claims.

There is a clarification that needs to be made here. AIX is a combination of SCO's Unix System V code and IBM-developed code. IBM is not claiming to own the Unix System V code included in AIX, IBM's adaptation of Unix. IBM is laying claim only to the AIX code that IBM developed. But that is all that IBM needs to do to set material facts of the lawsuit in dispute in order to defeat any SCO attempt to obtain a summary judgment.

Moreover, if IBM can convince a jury that it owns the AIX, JFS, RCU, and NUMA software code that IBM developed, that likely defeats most if not all of SCO's lawsuit claims. While not directly part of the SCO-Caldera v IBM lawsuit, such a jury decision in the SCO-Caldera v IBM lawsuit likely also would kill dead the SCO-McBride claims that the Linux kernel infringes on SCO-owned Unix copyrights.

The New Set of Claims in the Amended Complaint

In the original Complaint, SCO-Caldera specifies four counts, also known as causes of action:

  • Count I. Misappropriation of Trade Secrets--Utah Code Ann. §13-24-1 et seq.
  • Count II. Unfair Competition
  • Count III. Interference with Contract
  • Count IV. Breach of Contract

In the Amended Complaint SCO sets forth six counts:

  • Count I. Breach of IBM Software Agreement
  • Count II. Breach of IBM Sublicensing Agreement
  • Count III. Breach of Sequent Software Agreement
  • Count IV. Unfair Competition
  • Count V. Interference with Contract
  • Count VI. Misappropriation of Trade Secrets--Utah Code Ann. §13-24-1 et seq.

In effect, SCO has moved the Breach of Contract count to the first count position in its Amended Complaint. Then in effect, SCO has expanded the Breach of Contract count to three counts, Breach of IBM Software Agreement, Breach of IBM Sublicensing Agreement, and Breach of Sequent Software Agreement.

  • See Summary and Conclusions on Page 5 ----->

  • 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