Are SCO's Rebuilt IBM Lawsuit and Unix License Revocation Winners -- Or More SCO FUD?

SCO-Caldera (SCOX) has stated that it does not own the copyrights to the IBM-developed AIX, JFS, RCU, and NUMA software code in the Linux kernel and the GNU/Linux operating system. In part, that means that the SCO-Caldera v IBM lawsuit pretty much boils down to a dispute over whether the IBM-developed AIX, JFS, RCU, and NUMA software code IBM contributed to the Linux kernel is derivative work and thus comes under the Unix Product Software umbrella.

The importance of derivative work is not merely a matter of semantics. If the code IBM contributed to the Linux kernel is derivative work and thus comes under the Unix Product Software umbrella, then the Unix license prohibits IBM from disclosing that code and the related methods, secrets, and know-how.

However, there are some amendments and side letters to the basic IBM Unix license that might remove such restrictions on IBM-developed code even if it is derivative work. More about that in the Tom Carey interview in Part 2.

Moreover, if the code IBM contributed to the Linux kernel is not derivative work and thus does not come under the Unix Product Software umbrella, then there are no restrictions on IBM disclosing that code and the related methods, secrets, and know-how.

Interestingly and despite SCO's admission that IBM owns the copyrights to the IBM-developed code, if SCO-Caldera can show the IBM-developed code is derivative work, SCO-Caldera still might be able to lay claim to the copyrights for that code. That is another story for another day, however.

If SCO-Caldera can prove the IBM-developed code that IBM contributed to the Linux kernel comes under the Unix Product Software umbrella, then likely SCO-Caldera can prove also that IBM breached the Unix license agreements. But, does that mean that SCO-Caldera can then terminate IBM's irrevocable Unix license or get money damages for a contract breach? We discuss those issues further with attorney Thomas C. Carey in Part 2.

Thomas C. Carey is a programmer turned lawyer and now is a partner at Bromberg & Sunstein. He chairs the firm's Business Practice Group. His law practice includes licensing and transferring software, technology and other knowledge-based content, and lots more.

We discussed SCO's Amended Complaint and related issues with him via e-mail while our article about that was in development. The original plan was to include Tom Carey's comments in that article. However, that article already had grown too large before his comments were added. Moreover, the interesting and insightful Tom Carey interview is well-worthy of being an article in itself.

The discussions with Tom Carey get somewhat technical, legal, and complex. Nevertheless, the Tom Carey discussions provide some unique and well-thought insights and perspectives to the SCO-Caldera intellectual property (IP) issues and the SCO v IBM lawsuit.

These perspectives are based upon currently, publicly available, information. However, as Tom Carey notes several times in the discussion, there appears to be at least some, if not lots of, as yet undisclosed information that is relevant to the SCO v IBM lawsuit and to the SCO v Linux issues. The as-yet-undisclosed Project Monterey (a joint IBM and SCO endeavor involving Unix development) agreements and documents likely could have much bearing on the SCO v IBM lawsuit and perhaps even the SCO v Linux issues too.

IBM's Unix Extensions Are Not Derivative Works

In short, 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 that IBM developed to the Linux kernel developers.

These Unix extensions are important because it is these extensions that SCO claims IBM improperly contributed to the Linux kernel developers. If the SCO v IBM trial court decides that these extensions are derivate works that could make SCO the winner in the SCO v IBM breach of contract lawsuit.

Such a decision also could lay the groundwork for SCO's making a copyright claim to that code, thus opening the door for SCO attacks on Linux developers, Linux distributors, and Linux users. However, SCO-Caldera does not own those copyrights now.

The Unix license agreements under which IBM uses Unix and develops, distributes, and markets its AIX Unix-variant call for derivative works by IBM to become part of the Unix Software Product -- and thus subject to the terms and conditions of the Unix license. However, Tom Carey does not believe these particular IBM-developed Unix extensions, JFS, NUMA software, RCU, and so forth, come under the Unix Software Product umbrella that could make them SCO property or place them under Unix license restrictions.

The set of analyses that lead to that conclusion is tricky. The IBM Unix license really is a complex set of agreements, contracts, side letters of agreement, plus a variety of amendments to various agreements and contracts. That kind of mess opens all sorts of doors for courts to do un-anticipated things when they adjudicate contract disputes in such environments.

There seems little doubt that IBM did contribute JFS, NUMA software, and RCU code to the Linux kernel developers. If SCO successfully can assert claim to these IBM-developed and Sequent-developed Unix extensions under a derivative works and Unix Software Product theory, then it can show that IBM violated its Unix license agreements.

That would put SCO in a winning position for both its money damage claims against IBM and for terminating IBM's Unix/AIX license. But, as you will see in the discussions with Tom Carey later on in Part 2 of this article, that gets complicated by the complex set of agreements, contracts, side letters of agreement, plus all sorts of amendments to various agreements and contracts.

More about this further on in this article on page 2.

Also, in Part 2 of this 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.)

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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