Who Owns the Code?

Such a scenario of SCO being able to lay code ownership claims to JFS, NUMA software, RCU, and so forth could have been very damaging to Linux kernel developers, GNU/Linux operating system developers, Linux distribution providers, and Linux users. That's because it might have laid the groundwork for SCO-Caldera to assert copyright infringement claims against all of the above.

This too gets complicated by that complex set of agreements, contracts, side letters of agreement, plus all sorts of amendments to various agreements and contracts, as you will see in the discussions with Tom Carey in Part 2 of this article.

However, this no longer is a problem. On 22 July, IBM's Trink Guarino told MozillaQuest Magazine that IBM owns the copyrights to the IBM-developed AIX, JFS, RCU, and NUMA software code that IBM contributed to the Linux kernel. Then on Thursday, SCO's Blake Stowell told MozillaQuest Magazine that SCO agrees that IBM and not SCO owns those copyrights.

So unless something changes and SCO-Caldera decides to contest IBM's copyrights for its IBM-developed AIX, JFS, RCU, and NUMA software code, copyrights should not be an issue in this lawsuit. Actually the SCO-Caldera v IBM lawsuit never has been a copyright infringement case. From the get-go and now, it is a breach of contract and tort case -- not a copyright infringement case.

As Aberdeen Group analyst Bill Claybrook notes in our article, SCO-Caldera Shows No Proof Linux Was Derived from Unix, it could take many person-years for the Linux kernel developers to replace the NUMA software and similar technology code with new, open-source kernel code. JFS, NUMA software, and RCU are important for server and enterprise Linux use. However, if SCO-Caldera has no copyright claims to these modules, then the Linux kernel developers do not have to worry about backing that code out of the Linux kernel.

SCO's Claims Analyzed

Tom Carey has analyzed SCO's legal claims that JFS, NUMA, RCU, and other such extensions to Unix are derivative works -- based upon publicly available information. He concludes that these IBM-developed and Sequent-developed extensions to Unix most likely are not derivative works nor part of SCO-Caldera's Unix Software Product and that IBM was free to contribute them to the Linux kernel.

In effect that bursts SCO and its CEO Darl McBride's balloon. Without JFS, NUMA, RCU, and other such extensions to Unix as derivative works, SCO loses much of, if not all, the grounds for its money damage claims. SCO also loses much of, if not all, the grounds for terminating IBM's Unix license. Moreover, it pretty much takes the starch out of SCO's anti-Linux threats, too.

However, as Tom Carey points out in the discussions, there are lots of documents that both IBM and SCO are not disclosing publicly at this time -- particularly the contracts and agreements between IBM and SCO relating to Project Monterey, a joint IBM and SCO Unix development project. Those documents could dramatically change the entire SCO v IBM lawsuit when and if they are disclosed.

There are all sorts of little catches in trying to analyze SCO's allegations and claims. For example Tom Carey basis his conclusions in part on the Side Letter dated February 1, 1985 from AT&T to IBM (Exhibit C to the Amended Complaint)

. . . section 2.01 of the 1985 contract between IBM and AT&T states that IBM is free to modify and make derivative works of the product, but the modifications and derivative works are to be considered part of AT&T's "Software Product". However, section 2.01 was modified by virtue of the Side Letter dated February 1, 1985 from AT&T to IBM (Exhibit C to the complaint), in which AT&T said that modifications and derivative works created by IBM would belong to IBM. (Tom Carey)

Even if they are derivative works, the 1985 side letter says, if IBM wrote them, IBM owns them. To quote: "Regarding section 2.01, we agree that modifications and derivative works prepared by [IBM] are owned by [IBM]. However, ownership of any portion or portions of the SOFTWARE PRODUCTS included in any such modification or derivative work remains with us." (Tom Carey)

It appears that Sequent did some work on NUMA software, RCU, and SMP code prior to IBM acquiring Sequent. So it is quite possible that some of the NUMA software, RCU, and SMP code that IBM contributed to the Linux kernel might not be covered by the 1985 Side Letter.

I don't think Sequent activities conducted before IBM acquired it will have the benefit of the side letter. (Tom Carey )

Nevertheless, it also is likely that the NUMA software, RCU, and SMP code is not derivative work and therefore it does not come under the Unix Software Product umbrella.

We still are in the process of trying to get some sense of just how the pre-IBM-acquisition, Sequent-developed NUMA software, RCU, and SMP code impacts on the SCO v IBM lawsuit. However, that pre-acquisition Sequent code could be the Achilles' heel for IBM in its defense of SCO's lawsuit claims.

We asked IBM and SCO-Caldera spokespeople about the pre-IBM-acquisition, Sequent-developed NUMA software, RCU, and SMP code issues. None would answer any questions about these issues.

Inter alia, we specifically asked the IBM spokespeople if they disagreed with the conclusion that pre-acquisition Sequent code could be the Achilles' heel for IBM in its defense of SCO's lawsuit claims and that Achilles' heel means that this lawsuit might be a loser for IBM and subject IBM to loss of its Unix/AIX license. They did not disagree with that statement or refute it in any way.

Could the pre-IBM-acquisition, Sequent-developed NUMA software, RCU, and SMP code issues be the chink in IBM's IP armor? It's difficult to tell. But IBM's refusal to deny that it is the chink in IBM's IP armor certainly supports a conclusion that it is such a chink in the armor.

Of course in that pile of as yet undisclosed documents there could be a side letter of agreement between AT&T and Sequent similar to the 1995 Side Letter that seems to take IBM off the hook even if the IBM-developed code is a derivative work. Also, IBM is not the only company that contributed NUMA software code and other enterprise/server grade operating system code to the Linux kernel. Some of those other code contributions could help to take IBM off the hook too.

Interestingly this article is supposed to be the one pointing out the holes in SCO-Caldera's case against IBM. However, it might just be uncovering a major hole in IBM's defense against SCO.

In a way that is a turnabout is fair play situation. The companion article, Is IBM's Irrevocable Unix License Revocable?, was primarily directed toward taking SCO-Caldera's Amended Complaint allegations as true and looking at SCO's case in its most favorable light.

Even so we found holes in SCO's case in that article. For example in the Summary of that article, we noted: 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.

In all fairness, we have to present the pros and cons on both sides of the SCO-Caldera v IBM issues -- and we do, like it or not.

Our actual, in-depth, and nearly uncensored e-mail discussions with Tom Carey about SCO's revised IBM lawsuit, derivative works, and SCO's termination of IBM's Unix and AIX licenses are coming up in Part 2.

(It's a very interesting and informative discussion. So please make sure to check the MozillaQuest Magazine front page to see when it is published.)

Stay tuned.

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