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July 27, 2003

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

SCO-Caldera v IBM Complaint Changed Dramatically

By Mike Angelo -- 27July 2003 (C) -- Page 5

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:

Summary and Conclusions

SCO-Caldera's Amended Complaint was filed on 16 June 2003. It is a major overhaul and revision of the original Complaint filed on 6 March 2003. The Amended Complaint might be good enough to allow SCO to take a judgment against IBM based on the pleadings -- unless IBM pleads a viable defense to SCO's claims. And so far IBM has not done that in court.

Given Tuesday's statement from IBM's Trink Guarino that IBM says it owns the AIX, JFS, RCU, and NUMA software code that IBM developed, it appears that IBM will have no problem pleading a viable defense when and if it answers SCO's Amended Complaint, should IBM chose to do so.

SCO proving that IBM violated its license contracts with SCO that allows IBM to use, develop, and sub-license Unix and its AIX Unix variant is only part of the legal show. Should SCO convince the court that IBM did breach the contracts, what sort of remedies the Court will carve for IBM's alleged misconduct is something else.

Courts have lots of latitude in assessing money damages and carving out other remedies. They tend not to be overly harsh unless a defendant's misconduct is clearly intentional, very egregious, and way out of line. Good judges also will try to coerce the parties into reaching a settlement with which all sides can live.

Nevertheless, given the current state of the pleadings in the SCO v IBM lawsuit, IBM's license to use, develop, and sub-license Unix and its AIX Unix variant could be revoked by the Court.

That would mean that anyone using AIX would be 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 -- despite IBM's claims that its Unix license is irrevocable.

If this shoe fits, you ought to check with your regular lawyer and also with a competent intellectual property (IP) attorney. And you might want to ask your attorney if you should find another operating system and computer system vendor -- other than IBM.

Moreover, IBM could end up having to pay some big bucks to SCO-Caldera. Unless IBM interposes an effective defense to SCO-Caldera's Amended Complaint, IBM plus its investors and customers could be big losers in the SCO v IBM matter.

In a companion piece to this article, Are SCO's Rebuilt IBM Lawsuit and Unix License Revocation Winners -- Or More SCO FUD?, IP attorney Thomas C. Carey takes a different position.

The gist of Tom Carey's perspectives is that likely IBM owns the code for the controversial Unix extensions that SCO would like to call derivative works. These Unix extensions, JFS (Journaling File System), NUMA (Non-uniform Memory Access) software, RCU (Read, Copy, and Update), and so forth, were developed by IBM and Sequent, which now is owned by IBM.

Moreover, Tom Carey's position is that IBM was free to contribute the JFS, NUMA, and RCU code to the Linux kernel developers. If Tom Carey is correct, and likely he is, IBM wins and SCO loses.

Tom Carey also believes that under the particular Unix licensing agreements that govern the issues of the SCO-Caldera v IBM lawsuit, SCO cannot revoke IBM's Unix license. However, he also notes that there likely are as yet undisclosed agreements involving the IBM Unix licenses that might control these issues.

Only a very brief, simplification of Tom Carey's analyses of the SCO v IBM lawsuit and SCO IP issues is mentioned here. You really ought to read the full and very interesting interview to understand the issues and how Tom Carey views those issues.

Stay tuned. The Tom Carey interview article is on its way.

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


Thomas C. Carey

Bromberg & Sunstein LLP

Mark Radcliffe


Follow the Patents, People, Don Marti, Linux Journal News Notes 6 March 2003.

Microsoft licenses a SCO patent? What patent?, Don Marti, Linux Journal, 19 May 2003

Linux and the GNU Project, By Richard Stallman

UNIX is a registered trademark of The Open Group in the United States and other countries

SCO Copyright Press Release

SCO original Complaint

SCO Amended Complaint

Complaint Exhibit D and Amendment X

IBM Answer to Orginal Complaint

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

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