SCO v. IBM
Encyclopedia
SCO v. IBM is a civil
lawsuit
in the United States
District Court of Utah
. The SCO Group
asserted that there are legal uncertainties regarding the use of the Linux
operating system due to alleged violations of IBM
's Unix
licenses in the development of Linux
code at IBM
.
(formerly known as Caldera International and Caldera Systems) filed a $1 billion lawsuit in the US against IBM for allegedly “devaluing” its version of the UNIX operating system. SCO retained Boies Schiller & Flexner for this, and related subsequent ligitation. The amount of alleged damages was later increased to $3 billion, and then $5 billion. SCO claimed that IBM had, without authorization, contributed SCO's intellectual property
to the codebase of the open source
, Unix-like
Linux operating system. In May 2003 SCO Group sent letters to members of the Fortune 1000
and Global 500
companies warning them of the possibility of liability if they use Linux.
The claims and counter-claims made by both sides then escalated, with both IBM and Linux distributor Red Hat
starting legal action against SCO, SCO threatening Linux users who do not take out SCO UNIX license
s, and SCO suing Novell
(see also SCO-Linux controversies
), AutoZone and DaimlerChrysler
.
On September 30, 2003, Judge Kimball (the presiding federal district judge) granted the SCO Group's request for a delay until February 4, 2004, “to file any amended pleadings or add parties to this action”. The schedule was amended again on July 1, 2005. In December 2006 the trial date was vacated pending the resolution of SCO's litigation with Novell, all parties agreeing that SCO v. Novell
would resolve issues relating to SCO v. IBM.
In an "Order Granting in Part IBM's Motion to Limit SCO's Claims" dated June 28, 2006, Judge Brooke Wells (the federal magistrate judge
presiding over discovery aspects of the case) barred SCO from asserting 187 of the 298 allegedly misused items that IBM had moved to exclude from the lawsuit for lack of specificity, stating “many of SCO’s arguments and much of Mr. Rochkind’s declaration miss the mark”, and comparing SCO's tactics with those of an officer who accuses a citizen of theft, but will not disclose what the citizen is accused of stealing. “Certainly if an individual was stopped and accused of shoplifting after walking out of Neiman Marcus
, they would expect to be eventually told what they allegedly stole. It would be absurd for an officer to tell the accused that ‘you know what you stole I'm not telling.’ Or, to simply hand the accused individual a catalog of Neiman Marcus' entire inventory and say ‘it's in there somewhere, you figure it out.’”
On August 10, 2007, Judge Kimball, who also presides over the SCO v. Novell case, ruled that Novell, not the SCO Group, is the rightful owner of the copyrights covering the Unix operating system. The court also ruled that "SCO is obligated to recognize Novell's waiver of SCO's claims against IBM and Sequent". After the ruling Novell announced they have no interest in suing people over Unix and stated "We don't believe there is Unix in Linux".
In an order entered on 21 September 2007, Judge Kimball administratively closed the case of SCO v. IBM due to SCO filing for bankruptcy on 14 September 2007. This means that all action in SCO v. IBM is stayed until SCO emerges from bankruptcy proceedings. If and when it does, the case SCO v. IBM will resume where it left off.
On August 24, 2009, the U.S. Court of Appeals for the Tenth Circuit reversed the portion of the August 10, 2007 district court summary judgment in SCO v. Novell
, that Novell owned the copyright to Unix. As a result, SCO was permitted to pursue its claim of ownership of the Unix copyrights at trial.
On March 30, 2010 the jury returned a verdict in SCO v. Novell
, finding that Novell owns the copyrights.
(since the abandonment in early 2004 of its claim of misappropriation of trade secret
s). SCO's initial claims were:
On July 22, 2003, SCO amended its complaint. It added two new claims:
On February 27, 2004 SCO amended the complaint again. It dropped the trade secrets claim, but added the following claims:
SCO's claims in press releases and interviews have changed repeatedly as the affair has progressed. SCO has also both claimed and denied that the alleged copyright violations involved the Linux kernel
. Computerworld reported Chris Sontag of SCO as saying:
SCO refuses to allow access to the samples of code containing the alleged copyright violations except under a non-disclosure agreement
(NDA). SCO's NDA would not only require that the signer keep confidential which lines of code SCO contested, but would also require that they hold confidential any information SCO told them, even if they already knew that information before being informed of it by SCO; all Linux kernel developers have considered this to be far too restrictive, so none of them have signed it. However, at SCO's annual reseller's convention in August 2003 they revealed two short sections of code they alleged were copyright violations, and images of Darl McBride's presentation of this code were soon after published on German computer magazine publisher Heinz Heise
's website.
On May 30, 2003, SCO Group's CEO
Darl McBride
was quoted as saying that the Linux kernel contained "hundreds of lines" of code
from SCO's version of UNIX, and that SCO would reveal the code to other companies under NDA in July. To put this into context, David Wheeler's SLOCCount estimates the size of the Linux 2.4.2 kernel as 2,440,919 source lines of code out of over 30 million physical source lines of code for a typical GNU/Linux distribution. Therefore, as per SCO's own estimate, the allegedly infringing code would make up about 0.001% of the total code of a typical GNU/Linux installation. SCO has since upwardly revised this figure to over a million lines of code, however.
SCO's major claims have now been reported as relating to the following components of the Linux kernel:
These claims flow from the accusation of breach of contract. The contract between IBM and AT&T
(to which SCO claims to be successor in interest) allows IBM to use the SVR4
code, but the SVR4 code, plus any derivative works made from that code, must be held confidential by IBM. According to IBM's interpretation of the contract, and the interpretation published by AT&T in their "$ echo" newsletter in 1985, "derivative works" means any works containing SVR4 code. But according to SCO's interpretation, "derivative works" also includes any code built on top of SVR4, even if that does not contain, or even never contained, any SVR4 code. Thus, according to SCO, any AIX operating system
code that IBM developed must be kept confidential, even if it contains nothing from SVR4.
and open source
communities
, who consider SCO's claims to be without merit and even cynically dishonest. Open source advocates' arguments include:
SCO and its officers have been the subject of much criticism by the free software community, some of whom have stated that SCO's behavior may amount to illegal conduct. SEC filings
show that senior SCO executives dumped their personal holdings in SCO shortly after counter-suits were filed by IBM and Red Hat. SCO Group's CEO Darl McBride
has been the subject of particular criticism, because of his extreme statements to the press.
On March 10, 2003, the Open Source Initiative
(OSI) released a position paper on the SCO v. IBM complaint, written by Eric S. Raymond
, president of the OSI and author of The Cathedral and the Bazaar
.
On May 16, 2003, Groklaw
, a website founded by journalist/paralegal Pamela Jones
began covering the SCO litigation on a daily basis, and became a voice for the community to express its views of SCO's claims, as well as being an experiment in applying Open Source principles to legal research. The SCO Group has singled the site out as a particular thorn in its side.
On May 30, 2003, Linus Torvalds
, developer of the Linux kernel, was quoted as saying, regarding the case:
The Inquirer reported on June 15, 2003, that an unnamed Linux kernel programmer has written to SCO, threatening action based on their distribution of a Linux distribution that, according to their own claims, contains code not licensed under the GPL. According to the letter reproduced there, the programmer claimed that SCO's doing so was an infringement of his own copyright. SCO's response to this letter is not known.
In an interview on June 23, 2003, Torvalds responded to SCO's allegation that Linux development had no process for vetting kernel contributions:
On June 27, 2003, Eben Moglen
, the counsel for the Free Software Foundation
, released a more complete statement regarding the SCO lawsuit. In this statement, he reiterates many of the points made above, and states that:
On July 31, 2003, the Open Source Development Labs
released a position paper on the ongoing conflict, written by the FSF's Eben Moglen.
about Linux. Many believe that SCO's aim is to be bought out by IBM. Others have pointed to Microsoft
's subsequent licensing of the SCO source code as a possible quid pro quo
for SCO's action.
Univention GmbH, a Linux integrator, reported on May 30, 2003 it was granted an injunction by a Bremen court under German competition law that prohibits the SCO Group's German division from claiming that Linux contains illegally obtained SCO intellectual property. If the SCO Group continued to express this position, they would have to pay a fine of €
250,000. A similar injunction was sought around the same time in Poland
.
On July 23, Open Source Victoria announced that they had filed a complaint with the Australian Competition and Consumer Commission
, "asking the ACCC to investigate the SCO Group's activities in light of their unsubstantiated claims and their extortive legal threats for money against possibly hundreds of thousands of Australians."
SCO Group then filed subpoena
s for Richard Stallman
and Linus Torvalds
on November 13, 2003.
Within a few months of the filing of the lawsuit, Eben Moglen, the Free Software Foundation
's legal counsel, stated that SCO's suit should not concern Linux users other than IBM. In an interview with internetnews.com, he was reported as saying:
Apparently noticing the incongruity of their selling a Linux distribution while suing IBM for stealing their intellectual property and giving it to the developers of that operating system, the SCO Group then announced on May 14, 2003 that they would no longer distribute Linux. According to their press release, "SCO will continue to support existing SCO Linux and Caldera OpenLinux
customers and hold them harmless from any SCO intellectual property issues regarding SCO Linux and Caldera OpenLinux products."
SCO currently claims:
. This allegation was dropped however from SCO's claims in April 2004 in "SCO's Answer to IBM's Second Amended Counterclaims".
SCO originally based its views on the following considerations:
Section 8 of Article One of the United States Constitution
states that
Since the GNU General Public License for the most part disclaims exclusive rights, SCO claimed that its use violates this clause. SCO's argument asks the court to limit both Congress's discretion in implementing the copyright clause, which the Supreme Court refused to do in Eldred v. Ashcroft
, and copyright holders' discretion over the enjoyment of their exclusive rights. The GPL specifically prohibits, in section 7, distribution of software in jurisdictions where the laws are incompatible with the GPL, so a ruling that upheld SCO's constitutional argument would prevent distribution of Linux (and other copylefted software) in the United States.
Other commentators disagree however. One such commentator, Tom Carey, partner and chairman of a Boston intellectual property law firm, even went so far as to say "Attacks on the GPL are far-fetched and a little bit desperate." Stacey Quandt, principal analyst at Quandt Analytics, remarked, "SCO's prior claim that the GPL was unconstitutional was equivalent to Microsoft's claims about open source being un-American — totally ridiculous.".
Professor Eben Moglen, on leave from the Columbia University law faculty for the year 2006-2007, speaking as counsel to the Free Software Foundation (FSF) who is responsible for drafting the GPL, also takes this view. He says, "I believe the constitutionality attack on the GPL is not a tenable legal argument but is rather a public relations argument." In a talk at Harvard in February, he addressed the issue of constitutionality by referring to Congress' recent extension of copyright term limits. "It turns out that there's no such thing as an unconstitutional copyright rule," he said, "if Congress passes it, and if it observes the distinction between expression and idea."
entered the controversy by publishing on May 28, 2003, a press release concerning the SCO Group
's ownership of UNIX
. "To Novell's knowledge, the 1995 agreement governing SCO's purchase of UNIX from Novell does not convey to SCO the associated copyrights," a letter to the SCO Group's CEO Darl McBride said in part. "We believe it unlikely that SCO can demonstrate that it has any ownership interest whatsoever in those copyrights. Apparently you share this view, since over the last few months you have repeatedly asked Novell to transfer the copyrights to SCO, requests that Novell has rejected."
SCO later claimed to have discovered an amendment to their contract with Novell transferring partial ownership to SCO. Novell stated that the amendment "appears to bear a valid Novell signature, and the language, though convoluted, seems to support SCO's claim that ownership of some copyrights for Unix did transfer to SCO"; Novell also said that it could not find its own copy of the amendment.
But in subsequent letters to SCO that Novell released as part of a press release on December 22, 2003, Joseph LaSala Jr., Novell's general counsel, argued that the amendment provided for a copyright transfer only under certain conditions that SCO has allegedly failed to meet.
SCO was quick to dismiss Novell's claims. The same day, during a conference call to discuss SCO's quarterly financial results, SCO CEO Darl McBride said "We see this as a fraudulent filing of copyright notices ... and we'll take the appropriate measures as necessary with our legal team." SCO made good on this threat on January 20, 2004, when it filed SCO v. Novell
. On August 10, 2007, Judge Kimball issued a ruling which says in part "the court concludes that Novell is the owner of the UNIX and UnixWare copyrights." This decision is expected to impact the SCO v. IBM since the ruling states that Novell "is entitled, at its sole discretion, to direct SCO to waive its claims against IBM and Sequent".
On June 9, however, Novell privately conversed with SCO expressing their belief that SCO did not have rights to terminate the license. Three days later, Novell cited Section 4.16(b) of their Asset Purchase Agreement (APA) with SCO that gave Novell the ability to intercede in the dispute between SCO and IBM and waived SCO's rights to terminate the license.
On August 10, 2007, Judge Kimball ruled that Novell was the owner of UNIX and thus could waive SCO's termination of IBM's license.
In response to these counterclaims, SCO asserted that the GPL is unenforceable, void, and violates the United States Constitution
, but later dropped that claim. If these claims are true, then the GPL'd applications that SCO continues to distribute (like Samba) are being distributed without the permission of the copyright owners of those applications (since the permission was the GPL itself), which would be illegal.
On September 25, 2003 IBM amended its counterclaims bringing the total number of counterclaims to 13. The new counterclaims are:
On March 29, 2004, IBM amended its counterclaims again. It dropped one of the patent infringement claims, but added two new Declaratory judgments of Noninfringement of Copyrights. One of these seeks a declaration that IBM's AIX-related activities do not infringe any of SCO's copyrights. The other one seeks a similar declaration about IBM's Linux-related activities.
portion of the lawsuit lasted several years. The basis for SCO's suit is that any code developed on top of SVRX is a derivative work of SVRX (which would include AIX), and that IBM has publicly admitted to contributing AIX code to the Linux kernel. Since SCO has never seen the AIX code, it has, as part of the discovery process, deposed
IBM for the AIX code, so that it can compare AIX code to Linux kernel code. IBM, rejecting SCO's concept of derivative work, has deposed SCO for which lines of code it claims are infringing. SCO has responded that it can't determine which code is infringing until it has had the chance to look at the AIX code.
On December 5, 2003, in the first oral arguments relating to the discovery process, a judge granted IBM's two motions to compel against SCO, and deferred consideration of SCO's motions until later. This gave SCO a 30-day deadline to provide "with specificity" which lines of code in Linux they claim form the basis of their case. This was widely regarded as a first-round victory for IBM.
On June 28, 2006 Judge Brooke Wells granted IBM's motion to strike most of SCO's evidence, citing in part SCO's inability to provide the specificity required by the court:
SCO appealed to Judge Kimball and asked for a de novo
review of Judge Wells' order. On November 29, 2006, Judge Dale Kimball affirmed Judge Wells' order in its entirety.
The code (atealloc) has been in the IA-64 version of Linux for a short period of time. It is no longer in Linux after having been removed on July 4, 2003, since far superior alternatives existed.
UNIX creator Dennis Ritchie
confirms that either he or Ken Thompson wrote the atealloc code, which is released under the BSD license. It is claimed that SCO removed the original license text from Unix source (such as the Berkeley packet filter), allegedly violating the BSD license.
Novell
registered their claim to the copyright of original UNIX
source code, effectively challenging SCO's registration of the same code.
SCO Group
claimed in a press release to have sent DMCA notification letters alleging copyright infringement. Alleged copies of these letters were posted online. The letters give the names of 65 files in the Linux source code tree which supposedly incorporate "copyrighted binary interfaces". Linus Torvalds
then posted a rebuttal on Groklaw.
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
lawsuit
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
District Court of Utah
United States District Court for the District of Utah
The United States District Court for the District of Utah is the Federal district court whose jurisdiction is the state of Utah...
. The SCO Group
SCO Group
TSG Group, Inc. is a software company formerly called The SCO Group, Caldera Systems, and Caldera International. After acquiring the Santa Cruz Operation's Server Software and Services divisions, as well as UnixWare and OpenServer technologies, the company changed its focus to UNIX...
asserted that there are legal uncertainties regarding the use of the Linux
Linux
Linux is a Unix-like computer operating system assembled under the model of free and open source software development and distribution. The defining component of any Linux system is the Linux kernel, an operating system kernel first released October 5, 1991 by Linus Torvalds...
operating system due to alleged violations of IBM
IBM
International Business Machines Corporation or IBM is an American multinational technology and consulting corporation headquartered in Armonk, New York, United States. IBM manufactures and sells computer hardware and software, and it offers infrastructure, hosting and consulting services in areas...
's Unix
Unix
Unix is a multitasking, multi-user computer operating system originally developed in 1969 by a group of AT&T employees at Bell Labs, including Ken Thompson, Dennis Ritchie, Brian Kernighan, Douglas McIlroy, and Joe Ossanna...
licenses in the development of Linux
Linux
Linux is a Unix-like computer operating system assembled under the model of free and open source software development and distribution. The defining component of any Linux system is the Linux kernel, an operating system kernel first released October 5, 1991 by Linus Torvalds...
code at IBM
IBM
International Business Machines Corporation or IBM is an American multinational technology and consulting corporation headquartered in Armonk, New York, United States. IBM manufactures and sells computer hardware and software, and it offers infrastructure, hosting and consulting services in areas...
.
Summary
On March 6, 2003, the SCO GroupSCO Group
TSG Group, Inc. is a software company formerly called The SCO Group, Caldera Systems, and Caldera International. After acquiring the Santa Cruz Operation's Server Software and Services divisions, as well as UnixWare and OpenServer technologies, the company changed its focus to UNIX...
(formerly known as Caldera International and Caldera Systems) filed a $1 billion lawsuit in the US against IBM for allegedly “devaluing” its version of the UNIX operating system. SCO retained Boies Schiller & Flexner for this, and related subsequent ligitation. The amount of alleged damages was later increased to $3 billion, and then $5 billion. SCO claimed that IBM had, without authorization, contributed SCO's intellectual property
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
to the codebase of the open source
Open source
The term open source describes practices in production and development that promote access to the end product's source materials. Some consider open source a philosophy, others consider it a pragmatic methodology...
, Unix-like
Unix-like
A Unix-like operating system is one that behaves in a manner similar to a Unix system, while not necessarily conforming to or being certified to any version of the Single UNIX Specification....
Linux operating system. In May 2003 SCO Group sent letters to members of the Fortune 1000
Fortune 1000
Fortune 1000 is a reference to a list maintained by the American business magazine Fortune. The list is of the 1000 largest American companies, ranked on revenues alone...
and Global 500
Global 500
Global 500 may refer to:* Fortune Global 500, a list of the largest companies published by Fortune.* Global 500 Roll of Honour, an award given by the United Nations Environment Program....
companies warning them of the possibility of liability if they use Linux.
The claims and counter-claims made by both sides then escalated, with both IBM and Linux distributor Red Hat
Red Hat
Red Hat, Inc. is an S&P 500 company in the free and open source software sector, and a major Linux distribution vendor. Founded in 1993, Red Hat has its corporate headquarters in Raleigh, North Carolina with satellite offices worldwide....
starting legal action against SCO, SCO threatening Linux users who do not take out SCO UNIX license
License
The verb license or grant licence means to give permission. The noun license or licence refers to that permission as well as to the document recording that permission.A license may be granted by a party to another party as an element of an agreement...
s, and SCO suing Novell
SCO v. Novell
SCO v. Novell was a United States lawsuit in which the The SCO Group claimed ownership of the source code for the Unix operating system, including portions of Linux...
(see also SCO-Linux controversies
SCO-Linux controversies
The SCO-Linux controversies are a series of legal and public disputes between the software company SCO Group and various Linux vendors and users. The SCO Group alleges that its license agreements with IBM means that source code that IBM wrote and donated to be incorporated into Linux was added in...
), AutoZone and DaimlerChrysler
SCO v. DaimlerChrysler
The SCO Group v. DaimlerChrysler was a lawsuit filed in the United States, in the state of Michigan. In December 2003, SCO sent a number of letters to Unix licensees. In these letters, SCO demanded that the licensees certify certain things regarding their usage of Linux. DaimlerChrysler, a former...
.
On September 30, 2003, Judge Kimball (the presiding federal district judge) granted the SCO Group's request for a delay until February 4, 2004, “to file any amended pleadings or add parties to this action”. The schedule was amended again on July 1, 2005. In December 2006 the trial date was vacated pending the resolution of SCO's litigation with Novell, all parties agreeing that SCO v. Novell
SCO v. Novell
SCO v. Novell was a United States lawsuit in which the The SCO Group claimed ownership of the source code for the Unix operating system, including portions of Linux...
would resolve issues relating to SCO v. IBM.
In an "Order Granting in Part IBM's Motion to Limit SCO's Claims" dated June 28, 2006, Judge Brooke Wells (the federal magistrate judge
United States magistrate judge
In the United States federal courts, magistrate judges are appointed to assist United States district court judges in the performance of their duties...
presiding over discovery aspects of the case) barred SCO from asserting 187 of the 298 allegedly misused items that IBM had moved to exclude from the lawsuit for lack of specificity, stating “many of SCO’s arguments and much of Mr. Rochkind’s declaration miss the mark”, and comparing SCO's tactics with those of an officer who accuses a citizen of theft, but will not disclose what the citizen is accused of stealing. “Certainly if an individual was stopped and accused of shoplifting after walking out of Neiman Marcus
Neiman Marcus
Neiman Marcus, formerly Neiman-Marcus, is a luxury specialty retail department store operated by the Neiman Marcus Group in the United States. The company is headquartered in the One Marcus Square building in Downtown Dallas, Texas, and competes with other department stores such as Saks Fifth...
, they would expect to be eventually told what they allegedly stole. It would be absurd for an officer to tell the accused that ‘you know what you stole I'm not telling.’ Or, to simply hand the accused individual a catalog of Neiman Marcus' entire inventory and say ‘it's in there somewhere, you figure it out.’”
On August 10, 2007, Judge Kimball, who also presides over the SCO v. Novell case, ruled that Novell, not the SCO Group, is the rightful owner of the copyrights covering the Unix operating system. The court also ruled that "SCO is obligated to recognize Novell's waiver of SCO's claims against IBM and Sequent". After the ruling Novell announced they have no interest in suing people over Unix and stated "We don't believe there is Unix in Linux".
In an order entered on 21 September 2007, Judge Kimball administratively closed the case of SCO v. IBM due to SCO filing for bankruptcy on 14 September 2007. This means that all action in SCO v. IBM is stayed until SCO emerges from bankruptcy proceedings. If and when it does, the case SCO v. IBM will resume where it left off.
On August 24, 2009, the U.S. Court of Appeals for the Tenth Circuit reversed the portion of the August 10, 2007 district court summary judgment in SCO v. Novell
SCO v. Novell
SCO v. Novell was a United States lawsuit in which the The SCO Group claimed ownership of the source code for the Unix operating system, including portions of Linux...
, that Novell owned the copyright to Unix. As a result, SCO was permitted to pursue its claim of ownership of the Unix copyrights at trial.
On March 30, 2010 the jury returned a verdict in SCO v. Novell
SCO v. Novell
SCO v. Novell was a United States lawsuit in which the The SCO Group claimed ownership of the source code for the Unix operating system, including portions of Linux...
, finding that Novell owns the copyrights.
SCO's claims
SCO's lawsuit has been consistent only in its claim of breach of contractBreach of contract
Breach of contract is a legal cause of action in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party's performance....
(since the abandonment in early 2004 of its claim of misappropriation of trade secret
Trade secret
A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors or customers...
s). SCO's initial claims were:
- Misappropriation of trade secrets
- Unfair competitionUnfair competitionUnfair competition in a sense means that the competitors compete on unequal terms, because favourable or disadvantageous conditions are applied to some competitors but not to others; or that the actions of some competitors actively harm the position of others with respect to their ability to...
- Interference with contract
- Breach of IBM Software Agreement
On July 22, 2003, SCO amended its complaint. It added two new claims:
- Breach of IBM Sublicensing Agreement
- Breach of Sequent Software Agreement
On February 27, 2004 SCO amended the complaint again. It dropped the trade secrets claim, but added the following claims:
- Breach of Sequent Sublicensing Agreement
- Copyright infringementCopyright infringementCopyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
- Interference with business relationships
SCO's claims in press releases and interviews have changed repeatedly as the affair has progressed. SCO has also both claimed and denied that the alleged copyright violations involved the Linux kernel
Linux kernel
The Linux kernel is an operating system kernel used by the Linux family of Unix-like operating systems. It is one of the most prominent examples of free and open source software....
. Computerworld reported Chris Sontag of SCO as saying:
SCO refuses to allow access to the samples of code containing the alleged copyright violations except under a non-disclosure agreement
Non-disclosure agreement
A non-disclosure agreement , also known as a confidentiality agreement , confidential disclosure agreement , proprietary information agreement , or secrecy agreement, is a legal contract between at least two parties that outlines confidential material, knowledge, or information that the parties...
(NDA). SCO's NDA would not only require that the signer keep confidential which lines of code SCO contested, but would also require that they hold confidential any information SCO told them, even if they already knew that information before being informed of it by SCO; all Linux kernel developers have considered this to be far too restrictive, so none of them have signed it. However, at SCO's annual reseller's convention in August 2003 they revealed two short sections of code they alleged were copyright violations, and images of Darl McBride's presentation of this code were soon after published on German computer magazine publisher Heinz Heise
Heinz Heise
Heinz Heise is a publishing house based in Germany.- History :Heise was created in Hanover in 1949 as an address and telephone directory publisher, then later expanded to include magazines and loose leaf collections. In 2001, the company was divided into separate enterprises, all of which came...
's website.
On May 30, 2003, SCO Group's CEO
Chief executive officer
A chief executive officer , managing director , Executive Director for non-profit organizations, or chief executive is the highest-ranking corporate officer or administrator in charge of total management of an organization...
Darl McBride
Darl McBride
Darl Charles McBride is the former CEO of The SCO Group. He became the CEO of Caldera International on June 28, 2002.On March 7, 2003, during McBride's tenure as CEO of the company, The SCO Group initiated litigation against IBM, alleging breach of contract and copyright infringement claims...
was quoted as saying that the Linux kernel contained "hundreds of lines" of code
Source lines of code
Source lines of code is a software metric used to measure the size of a software program by counting the number of lines in the text of the program's source code...
from SCO's version of UNIX, and that SCO would reveal the code to other companies under NDA in July. To put this into context, David Wheeler's SLOCCount estimates the size of the Linux 2.4.2 kernel as 2,440,919 source lines of code out of over 30 million physical source lines of code for a typical GNU/Linux distribution. Therefore, as per SCO's own estimate, the allegedly infringing code would make up about 0.001% of the total code of a typical GNU/Linux installation. SCO has since upwardly revised this figure to over a million lines of code, however.
SCO's major claims have now been reported as relating to the following components of the Linux kernel:
- Symmetric multiprocessingSymmetric multiprocessingIn computing, symmetric multiprocessing involves a multiprocessor computer hardware architecture where two or more identical processors are connected to a single shared main memory and are controlled by a single OS instance. Most common multiprocessor systems today use an SMP architecture...
(SMP), - Non-uniform memory accessNon-Uniform Memory AccessNon-Uniform Memory Access is a computer memory design used in Multiprocessing, where the memory access time depends on the memory location relative to a processor...
(NUMA) multiprocessing, - the read-copy-updateRead-copy-updateIn computer operating systems, read-copy-update is a synchronization mechanism implementing a kind of mutual exclusionPlease note that RCU does not implement mutual exclusion in the conventional sense: RCU readers can and do run concurrently with RCU updates...
(RCU) locking strategy,- This technique is widely believed to have been developed at Sequent Computer SystemsSequent Computer SystemsSequent Computer Systems, or Sequent, was a computer company that designed and manufactured multiprocessing computer systems. They were among the pioneers in high-performance symmetric multiprocessing open systems, innovating in both hardware and software Sequent Computer Systems, or Sequent, was...
, who were then bought by IBM, who holds several patents (including patent ) on this technique.
- This technique is widely believed to have been developed at Sequent Computer Systems
- SGISilicon GraphicsSilicon Graphics, Inc. was a manufacturer of high-performance computing solutions, including computer hardware and software, founded in 1981 by Jim Clark...
's Extended File System (XFSXFSXFS is a high-performance journaling file system created by Silicon Graphics, Inc. It is the default file system in IRIX releases 5.3 and onwards and later ported to the Linux kernel. XFS is particularly proficient at parallel IO due to its allocation group based design...
), - IBM's JFS journaling file systemJournaling file systemA journaling file system is a file system that keeps track of the changes that will be made in a journal before committing them to the main file system...
These claims flow from the accusation of breach of contract. The contract between IBM and AT&T
AT&T
AT&T Inc. is an American multinational telecommunications corporation headquartered in Whitacre Tower, Dallas, Texas, United States. It is the largest provider of mobile telephony and fixed telephony in the United States, and is also a provider of broadband and subscription television services...
(to which SCO claims to be successor in interest) allows IBM to use the SVR4
UNIX System V
Unix System V, commonly abbreviated SysV , is one of the first commercial versions of the Unix operating system. It was originally developed by American Telephone & Telegraph and first released in 1983. Four major versions of System V were released, termed Releases 1, 2, 3 and 4...
code, but the SVR4 code, plus any derivative works made from that code, must be held confidential by IBM. According to IBM's interpretation of the contract, and the interpretation published by AT&T in their "$ echo" newsletter in 1985, "derivative works" means any works containing SVR4 code. But according to SCO's interpretation, "derivative works" also includes any code built on top of SVR4, even if that does not contain, or even never contained, any SVR4 code. Thus, according to SCO, any AIX operating system
AIX operating system
AIX AIX AIX (Advanced Interactive eXecutive, pronounced "a i ex" is a series of proprietary Unix operating systems developed and sold by IBM for several of its computer platforms...
code that IBM developed must be kept confidential, even if it contains nothing from SVR4.
Free software and open source community reaction
The lawsuit caused moral indignation and outrage in the free softwareFree software
Free software, software libre or libre software is software that can be used, studied, and modified without restriction, and which can be copied and redistributed in modified or unmodified form either without restriction, or with restrictions that only ensure that further recipients can also do...
and open source
Open source
The term open source describes practices in production and development that promote access to the end product's source materials. Some consider open source a philosophy, others consider it a pragmatic methodology...
communities
Free software community
The free-software community is an informal term that refers to the users and developers of free software as well as supporters of the free-software movement. The movement is sometimes referred to as the open-source software community or a subset thereof...
, who consider SCO's claims to be without merit and even cynically dishonest. Open source advocates' arguments include:
- that SCO does not even own the code in question. SCO has often called themselves "The owner of the UNIX operating system." But that claim is dubious at best. SCO certainly has no clear claim to SVR4 code. This view is now supported by the jury verdict in SCO v. Novell.
- that the Linux operating system was unlikely to contain UNIX code, as it had been written from scratch by hundreds of collaborators, with a well-documented provenanceProvenanceProvenance, from the French provenir, "to come from", refers to the chronology of the ownership or location of an historical object. The term was originally mostly used for works of art, but is now used in similar senses in a wide range of fields, including science and computing...
and revision history that was entirely in the public view; - that it made no technical sense to incorporate SCO UNIX code in Linux, as Linux had the technical features that are claimed to have been appropriated already implemented before SCO UNIX had them;
- that even if Linux and SCO UNIX had some code in common, this did not necessarily mean that this code was copied to Linux from SCO UNIX—perhaps the common pieces of code had been legitimately copied from another open source operating system, perhaps a BSDBerkeley Software DistributionBerkeley Software Distribution is a Unix operating system derivative developed and distributed by the Computer Systems Research Group of the University of California, Berkeley, from 1977 to 1995...
-derived one, or one of the historical UNIX versions previously released by SCO; - that Caldera Systems had begun as a Linux company before buying SCO's UNIX business and certain assets related to it, and has added many Linux-like features to SCO UNIX, and any common code may have in fact been copied from Linux into SCO UNIX:
- and furthermore, that if such reverse copying from Linux itself had occurred, that the distribution of SCO UNIX binaries containing GPLGNU General Public LicenseThe GNU General Public License is the most widely used free software license, originally written by Richard Stallman for the GNU Project....
'd contributions may therefore require SCO either to remove their product from the market until GPL'd code has been removed, or to release their source code under the GPL to their users;
- and furthermore, that if such reverse copying from Linux itself had occurred, that the distribution of SCO UNIX binaries containing GPL
- that even if Linux did contain copied SCO UNIX code, the UNIX source code had already been made widely available without a non-disclosure agreementNon-disclosure agreementA non-disclosure agreement , also known as a confidentiality agreement , confidential disclosure agreement , proprietary information agreement , or secrecy agreement, is a legal contract between at least two parties that outlines confidential material, knowledge, or information that the parties...
, and therefore had no trade secretTrade secretA trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors or customers...
status (as a judge found in USL v. BSDiUSL v. BSDiUSL v. BSDi was a lawsuit brought in the United States in 1992 by Unix System Laboratories against Berkeley Software Design, Inc and the Regents of the University of California over intellectual property related to UNIX...
); - that even if Linux did contain some UNIX code, the SCO Group had lost any right to sue IBM for trade secret or other intellectual property infringement by distributing Linux itself (their Caldera OpenLinux distribution) under the GNU General Public LicenseGNU General Public LicenseThe GNU General Public License is the most widely used free software license, originally written by Richard Stallman for the GNU Project....
(GPL), both before and after their announcement, which precludes them from pursuing any other user of Linux.
SCO and its officers have been the subject of much criticism by the free software community, some of whom have stated that SCO's behavior may amount to illegal conduct. SEC filings
show that senior SCO executives dumped their personal holdings in SCO shortly after counter-suits were filed by IBM and Red Hat. SCO Group's CEO Darl McBride
Darl McBride
Darl Charles McBride is the former CEO of The SCO Group. He became the CEO of Caldera International on June 28, 2002.On March 7, 2003, during McBride's tenure as CEO of the company, The SCO Group initiated litigation against IBM, alleging breach of contract and copyright infringement claims...
has been the subject of particular criticism, because of his extreme statements to the press.
On March 10, 2003, the Open Source Initiative
Open Source Initiative
The Open Source Initiative is an organization dedicated to promoting open source software.The organization was founded in February 1998, by Bruce Perens and Eric S. Raymond, prompted by Netscape Communications Corporation publishing the source code for its flagship Netscape Communicator product...
(OSI) released a position paper on the SCO v. IBM complaint, written by Eric S. Raymond
Eric S. Raymond
Eric Steven Raymond , often referred to as ESR, is an American computer programmer, author and open source software advocate. After the 1997 publication of The Cathedral and the Bazaar, Raymond was for a number of years frequently quoted as an unofficial spokesman for the open source movement...
, president of the OSI and author of The Cathedral and the Bazaar
The Cathedral and the Bazaar
The Cathedral and the Bazaar is an essay by Eric S. Raymond on software engineering methods, based on his observations of the Linux kernel development process and his experiences managing an open source project, fetchmail. It examines the struggle between top-down and bottom-up design...
.
On May 16, 2003, Groklaw
Groklaw
Groklaw is an award-winning website covering legal news of interest to the free and open source software community. Started as a law blog on May 16, 2003 by paralegal Pamela Jones at Radio UserLand, it has covered issues such as the SCO-Linux lawsuits, the EU anti-trust case against Microsoft, and...
, a website founded by journalist/paralegal Pamela Jones
Pamela Jones
Pamela Jones, commonly known as PJ, is the creator and editor of Groklaw, an award-winning website that covers legal news of interest to the free and open-source software community...
began covering the SCO litigation on a daily basis, and became a voice for the community to express its views of SCO's claims, as well as being an experiment in applying Open Source principles to legal research. The SCO Group has singled the site out as a particular thorn in its side.
On May 30, 2003, Linus Torvalds
Linus Torvalds
Linus Benedict Torvalds is a Finnish software engineer and hacker, best known for having initiated the development of the open source Linux kernel. He later became the chief architect of the Linux kernel, and now acts as the project's coordinator...
, developer of the Linux kernel, was quoted as saying, regarding the case:
The Inquirer reported on June 15, 2003, that an unnamed Linux kernel programmer has written to SCO, threatening action based on their distribution of a Linux distribution that, according to their own claims, contains code not licensed under the GPL. According to the letter reproduced there, the programmer claimed that SCO's doing so was an infringement of his own copyright. SCO's response to this letter is not known.
In an interview on June 23, 2003, Torvalds responded to SCO's allegation that Linux development had no process for vetting kernel contributions:
On June 27, 2003, Eben Moglen
Eben Moglen
Eben Moglen is a professor of law and legal history at Columbia University, and is the founder, Director-Counsel and Chairman of Software Freedom Law Center, whose client list includes numerous pro bono clients, such as the Free Software Foundation....
, the counsel for the Free Software Foundation
Free Software Foundation
The Free Software Foundation is a non-profit corporation founded by Richard Stallman on 4 October 1985 to support the free software movement, a copyleft-based movement which aims to promote the universal freedom to create, distribute and modify computer software...
, released a more complete statement regarding the SCO lawsuit. In this statement, he reiterates many of the points made above, and states that:
On July 31, 2003, the Open Source Development Labs
OSDL
Open Source Development Labs was a non-profit organization supported by a global consortium tasked to "accelerate the deployment of Linux for enterprise computing." Founded in 2000, its goals included "to be the recognized center-of-gravity for the Linux industry."On January 22, 2007, OSDL and the...
released a position paper on the ongoing conflict, written by the FSF's Eben Moglen.
Accusations of creating fear, uncertainty and doubt
A number of Linux supporters have characterized SCO's actions as an attempt to create fear, uncertainty and doubtFear, uncertainty and doubt
Fear, uncertainty and doubt, frequently abbreviated as FUD, is a tactic used in sales, marketing, public relations, politics and propaganda....
about Linux. Many believe that SCO's aim is to be bought out by IBM. Others have pointed to Microsoft
Microsoft
Microsoft Corporation is an American public multinational corporation headquartered in Redmond, Washington, USA that develops, manufactures, licenses, and supports a wide range of products and services predominantly related to computing through its various product divisions...
's subsequent licensing of the SCO source code as a possible quid pro quo
Quid pro quo
Quid pro quo most often means a more-or-less equal exchange or substitution of goods or services. English speakers often use the term to mean "a favour for a favour" and the phrases with almost identical meaning include: "give and take", "tit for tat", "this for that", and "you scratch my back,...
for SCO's action.
Univention GmbH, a Linux integrator, reported on May 30, 2003 it was granted an injunction by a Bremen court under German competition law that prohibits the SCO Group's German division from claiming that Linux contains illegally obtained SCO intellectual property. If the SCO Group continued to express this position, they would have to pay a fine of €
Euro
The euro is the official currency of the eurozone: 17 of the 27 member states of the European Union. It is also the currency used by the Institutions of the European Union. The eurozone consists of Austria, Belgium, Cyprus, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg,...
250,000. A similar injunction was sought around the same time in Poland
Poland
Poland , officially the Republic of Poland , is a country in Central Europe bordered by Germany to the west; the Czech Republic and Slovakia to the south; Ukraine, Belarus and Lithuania to the east; and the Baltic Sea and Kaliningrad Oblast, a Russian exclave, to the north...
.
On July 23, Open Source Victoria announced that they had filed a complaint with the Australian Competition and Consumer Commission
Australian Competition and Consumer Commission
The Australian Competition and Consumer Commission is an independent authority of the Australia government. It was established in 1995 with the amalgamation of the Australian Trade Practices Commission and the Prices Surveillance Authority to administer the Trade Practices Act 1974...
, "asking the ACCC to investigate the SCO Group's activities in light of their unsubstantiated claims and their extortive legal threats for money against possibly hundreds of thousands of Australians."
SCO Group then filed subpoena
Subpoena
A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:...
s for Richard Stallman
Richard Stallman
Richard Matthew Stallman , often shortened to rms,"'Richard Stallman' is just my mundane name; you can call me 'rms'"|last= Stallman|first= Richard|date= N.D.|work=Richard Stallman's homepage...
and Linus Torvalds
Linus Torvalds
Linus Benedict Torvalds is a Finnish software engineer and hacker, best known for having initiated the development of the open source Linux kernel. He later became the chief architect of the Linux kernel, and now acts as the project's coordinator...
on November 13, 2003.
The GPL issue
Free Software Foundation
The Free Software Foundation is a non-profit corporation founded by Richard Stallman on 4 October 1985 to support the free software movement, a copyleft-based movement which aims to promote the universal freedom to create, distribute and modify computer software...
's legal counsel, stated that SCO's suit should not concern Linux users other than IBM. In an interview with internetnews.com, he was reported as saying:
Apparently noticing the incongruity of their selling a Linux distribution while suing IBM for stealing their intellectual property and giving it to the developers of that operating system, the SCO Group then announced on May 14, 2003 that they would no longer distribute Linux. According to their press release, "SCO will continue to support existing SCO Linux and Caldera OpenLinux
Caldera OpenLinux
Caldera OpenLinux is a defunct Linux distribution that was created by the former Caldera Systems corporation. It was the early "business-oriented distribution" and foreshadowed the direction of developments that came to most other distributions and the Linux community generally.-Novell and...
customers and hold them harmless from any SCO intellectual property issues regarding SCO Linux and Caldera OpenLinux products."
SCO currently claims:
- Any code belonging to SCO that might have been GPL'd was done by SCO employees without proper legal authorization, and thus is not legally GPL'd.
- That for code to be GPL'd, the code's copyright owner must put a GPL notice before the code, but since SCO itself was not the one to add the notices, the code was never GPL'd.
GPL and the US Constitution
During a certain period of its litigation against IBM, SCO alleged that the GPL violates the United States ConstitutionUnited States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
. This allegation was dropped however from SCO's claims in April 2004 in "SCO's Answer to IBM's Second Amended Counterclaims".
SCO originally based its views on the following considerations:
Section 8 of Article One of the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
states that
Since the GNU General Public License for the most part disclaims exclusive rights, SCO claimed that its use violates this clause. SCO's argument asks the court to limit both Congress's discretion in implementing the copyright clause, which the Supreme Court refused to do in Eldred v. Ashcroft
Eldred v. Ashcroft
Eldred v. Ashcroft, was a court case in the United States challenging the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act...
, and copyright holders' discretion over the enjoyment of their exclusive rights. The GPL specifically prohibits, in section 7, distribution of software in jurisdictions where the laws are incompatible with the GPL, so a ruling that upheld SCO's constitutional argument would prevent distribution of Linux (and other copylefted software) in the United States.
Other commentators disagree however. One such commentator, Tom Carey, partner and chairman of a Boston intellectual property law firm, even went so far as to say "Attacks on the GPL are far-fetched and a little bit desperate." Stacey Quandt, principal analyst at Quandt Analytics, remarked, "SCO's prior claim that the GPL was unconstitutional was equivalent to Microsoft's claims about open source being un-American — totally ridiculous.".
Professor Eben Moglen, on leave from the Columbia University law faculty for the year 2006-2007, speaking as counsel to the Free Software Foundation (FSF) who is responsible for drafting the GPL, also takes this view. He says, "I believe the constitutionality attack on the GPL is not a tenable legal argument but is rather a public relations argument." In a talk at Harvard in February, he addressed the issue of constitutionality by referring to Congress' recent extension of copyright term limits. "It turns out that there's no such thing as an unconstitutional copyright rule," he said, "if Congress passes it, and if it observes the distinction between expression and idea."
Novell enters the controversy
NovellNovell
Novell, Inc. is a multinational software and services company. It is a wholly owned subsidiary of The Attachmate Group. It specializes in network operating systems, such as Novell NetWare; systems management solutions, such as Novell ZENworks; and collaboration solutions, such as Novell Groupwise...
entered the controversy by publishing on May 28, 2003, a press release concerning the SCO Group
SCO Group
TSG Group, Inc. is a software company formerly called The SCO Group, Caldera Systems, and Caldera International. After acquiring the Santa Cruz Operation's Server Software and Services divisions, as well as UnixWare and OpenServer technologies, the company changed its focus to UNIX...
's ownership of UNIX
Unix
Unix is a multitasking, multi-user computer operating system originally developed in 1969 by a group of AT&T employees at Bell Labs, including Ken Thompson, Dennis Ritchie, Brian Kernighan, Douglas McIlroy, and Joe Ossanna...
. "To Novell's knowledge, the 1995 agreement governing SCO's purchase of UNIX from Novell does not convey to SCO the associated copyrights," a letter to the SCO Group's CEO Darl McBride said in part. "We believe it unlikely that SCO can demonstrate that it has any ownership interest whatsoever in those copyrights. Apparently you share this view, since over the last few months you have repeatedly asked Novell to transfer the copyrights to SCO, requests that Novell has rejected."
SCO later claimed to have discovered an amendment to their contract with Novell transferring partial ownership to SCO. Novell stated that the amendment "appears to bear a valid Novell signature, and the language, though convoluted, seems to support SCO's claim that ownership of some copyrights for Unix did transfer to SCO"; Novell also said that it could not find its own copy of the amendment.
But in subsequent letters to SCO that Novell released as part of a press release on December 22, 2003, Joseph LaSala Jr., Novell's general counsel, argued that the amendment provided for a copyright transfer only under certain conditions that SCO has allegedly failed to meet.
SCO was quick to dismiss Novell's claims. The same day, during a conference call to discuss SCO's quarterly financial results, SCO CEO Darl McBride said "We see this as a fraudulent filing of copyright notices ... and we'll take the appropriate measures as necessary with our legal team." SCO made good on this threat on January 20, 2004, when it filed SCO v. Novell
SCO v. Novell
SCO v. Novell was a United States lawsuit in which the The SCO Group claimed ownership of the source code for the Unix operating system, including portions of Linux...
. On August 10, 2007, Judge Kimball issued a ruling which says in part "the court concludes that Novell is the owner of the UNIX and UnixWare copyrights." This decision is expected to impact the SCO v. IBM since the ruling states that Novell "is entitled, at its sole discretion, to direct SCO to waive its claims against IBM and Sequent".
IBM's AIX license
Reuters reported that the SCO Group intended to revoke IBM's license to use UNIX code in their AIX operating system on Friday, June 13, 2003 if no resolution is reached before then. IBM responded that they believe that SCO has no power to do so, as their license is "irrevocable". On the following Monday, June 16, 2003, CNET News.com reported that SCO had announced it had terminated IBM's license. IBM continues to distribute and support AIX, and the SCO Group now states that they will be seeking an injunction to force IBM not only to stop selling and supporting AIX, but also to return to the SCO Group or destroy all copies of the AIX operating system. IBM's continued distribution of AIX is the basis of SCO's copyright claim.On June 9, however, Novell privately conversed with SCO expressing their belief that SCO did not have rights to terminate the license. Three days later, Novell cited Section 4.16(b) of their Asset Purchase Agreement (APA) with SCO that gave Novell the ability to intercede in the dispute between SCO and IBM and waived SCO's rights to terminate the license.
On August 10, 2007, Judge Kimball ruled that Novell was the owner of UNIX and thus could waive SCO's termination of IBM's license.
IBM counterclaims against SCO
On August 6, 2003, IBM filed its counterclaims against SCO. It made 10 counterclaims:- Breach of contractBreach of contractBreach of contract is a legal cause of action in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party's performance....
- Lanham ActLanham ActThe Lanham Act is a piece of legislation that contains the federal statutes of trademark law in the United States. The Act prohibits a number of activities, including trademark infringement, trademark dilution, and false advertising.-History:Named for Representative Fritz G...
violation - Unfair competitionUnfair competitionUnfair competition in a sense means that the competitors compete on unequal terms, because favourable or disadvantageous conditions are applied to some competitors but not to others; or that the actions of some competitors actively harm the position of others with respect to their ability to...
- Intentional interference with prospective economic relations
- Unfair and deceptive trade practices
- Breach of the GNU General Public LicenseGNU General Public LicenseThe GNU General Public License is the most widely used free software license, originally written by Richard Stallman for the GNU Project....
- and four counts of patent infringementPatent infringementPatent infringement is the commission of a prohibited act with respect to a patented invention without permission from the patent holder. Permission may typically be granted in the form of a license. The definition of patent infringement may vary by jurisdiction, but it typically includes using or...
In response to these counterclaims, SCO asserted that the GPL is unenforceable, void, and violates the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, but later dropped that claim. If these claims are true, then the GPL'd applications that SCO continues to distribute (like Samba) are being distributed without the permission of the copyright owners of those applications (since the permission was the GPL itself), which would be illegal.
On September 25, 2003 IBM amended its counterclaims bringing the total number of counterclaims to 13. The new counterclaims are:
- Copyright infringementCopyright infringementCopyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
- This counterclaim involves an alleged copyright infringement by SCO of GPL-licensed IBM code in the Linux kernel. Some commentators have pointed out that if SCO manages to invalidate the GPL, they are highly likely to be caught by this counterclaim, as it is of the same form as their claim against IBM.
- Promissory estoppelEstoppelEstoppel in its broadest sense is a legal term referring to a series of legal and equitable doctrines that preclude "a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth, either by the acts of judicial or legislative...
- Declaratory judgmentDeclaratory judgmentA declaratory judgment is a judgment of a court in a civil case which declares the rights, duties, or obligations of one or more parties in a dispute. A declaratory judgment is legally binding, but it does not order any action by a party. In this way, the declaratory judgment is like an action to...
On March 29, 2004, IBM amended its counterclaims again. It dropped one of the patent infringement claims, but added two new Declaratory judgments of Noninfringement of Copyrights. One of these seeks a declaration that IBM's AIX-related activities do not infringe any of SCO's copyrights. The other one seeks a similar declaration about IBM's Linux-related activities.
Discovery
The discoveryDiscovery (law)
In U.S.law, discovery is the pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for...
portion of the lawsuit lasted several years. The basis for SCO's suit is that any code developed on top of SVRX is a derivative work of SVRX (which would include AIX), and that IBM has publicly admitted to contributing AIX code to the Linux kernel. Since SCO has never seen the AIX code, it has, as part of the discovery process, deposed
Deposition (law)
In the law of the United States, a deposition is the out-of-court oral testimony of a witness that is reduced to writing for later use in court or for discovery purposes. It is commonly used in litigation in the United States and Canada and is almost always conducted outside of court by the...
IBM for the AIX code, so that it can compare AIX code to Linux kernel code. IBM, rejecting SCO's concept of derivative work, has deposed SCO for which lines of code it claims are infringing. SCO has responded that it can't determine which code is infringing until it has had the chance to look at the AIX code.
On December 5, 2003, in the first oral arguments relating to the discovery process, a judge granted IBM's two motions to compel against SCO, and deferred consideration of SCO's motions until later. This gave SCO a 30-day deadline to provide "with specificity" which lines of code in Linux they claim form the basis of their case. This was widely regarded as a first-round victory for IBM.
On June 28, 2006 Judge Brooke Wells granted IBM's motion to strike most of SCO's evidence, citing in part SCO's inability to provide the specificity required by the court:
SCO appealed to Judge Kimball and asked for a de novo
Trial de novo
In law, the expression trial de novo means a "new trial" by a different tribunal...
review of Judge Wells' order. On November 29, 2006, Judge Dale Kimball affirmed Judge Wells' order in its entirety.
Controversial code
At a reseller show in August 2003, SCO revealed a sample of alleged copied code. This was later shown to be originally released under a BSD License.The code (atealloc) has been in the IA-64 version of Linux for a short period of time. It is no longer in Linux after having been removed on July 4, 2003, since far superior alternatives existed.
UNIX creator Dennis Ritchie
Dennis Ritchie
Dennis MacAlistair Ritchie , was an American computer scientist who "helped shape the digital era." He created the C programming language and, with long-time colleague Ken Thompson, the UNIX operating system...
confirms that either he or Ken Thompson wrote the atealloc code, which is released under the BSD license. It is claimed that SCO removed the original license text from Unix source (such as the Berkeley packet filter), allegedly violating the BSD license.
Copyright claims and DMCA notices
In late December 2003, new developments involving copyright claims emerged.Novell
Novell
Novell, Inc. is a multinational software and services company. It is a wholly owned subsidiary of The Attachmate Group. It specializes in network operating systems, such as Novell NetWare; systems management solutions, such as Novell ZENworks; and collaboration solutions, such as Novell Groupwise...
registered their claim to the copyright of original UNIX
Unix
Unix is a multitasking, multi-user computer operating system originally developed in 1969 by a group of AT&T employees at Bell Labs, including Ken Thompson, Dennis Ritchie, Brian Kernighan, Douglas McIlroy, and Joe Ossanna...
source code, effectively challenging SCO's registration of the same code.
SCO Group
SCO Group
TSG Group, Inc. is a software company formerly called The SCO Group, Caldera Systems, and Caldera International. After acquiring the Santa Cruz Operation's Server Software and Services divisions, as well as UnixWare and OpenServer technologies, the company changed its focus to UNIX...
claimed in a press release to have sent DMCA notification letters alleging copyright infringement. Alleged copies of these letters were posted online. The letters give the names of 65 files in the Linux source code tree which supposedly incorporate "copyrighted binary interfaces". Linus Torvalds
Linus Torvalds
Linus Benedict Torvalds is a Finnish software engineer and hacker, best known for having initiated the development of the open source Linux kernel. He later became the chief architect of the Linux kernel, and now acts as the project's coordinator...
then posted a rebuttal on Groklaw.
See also
- GroklawGroklawGroklaw is an award-winning website covering legal news of interest to the free and open source software community. Started as a law blog on May 16, 2003 by paralegal Pamela Jones at Radio UserLand, it has covered issues such as the SCO-Linux lawsuits, the EU anti-trust case against Microsoft, and...
- Red Hat v. SCORed Hat v. SCOThe Red Hat v. SCO lawsuit - Red Hat filed suit against The SCO Group on August 4, 2003. Red Hat is asking for a permanent injunction against SCO's Linux campaign and a number of declaratory judgments that Red Hat has not violated SCO's copyrights....
- SCO v. AutoZone
- SCO v. DaimlerChryslerSCO v. DaimlerChryslerThe SCO Group v. DaimlerChrysler was a lawsuit filed in the United States, in the state of Michigan. In December 2003, SCO sent a number of letters to Unix licensees. In these letters, SCO demanded that the licensees certify certain things regarding their usage of Linux. DaimlerChrysler, a former...
- SCO v. NovellSCO v. NovellSCO v. Novell was a United States lawsuit in which the The SCO Group claimed ownership of the source code for the Unix operating system, including portions of Linux...
Documents
- [ftp://ftp.tribug.org/pub/tuhs/Caldera-license.pdf Caldera's announcement for the licensing of certain Unix versions under the BSD license]
- Groklaw's list of unsealed court documents as of October 10, 2006
Analysis
- Greg Lehey's analysis of the code that SCO alleges is in violation of their copyright
- Bruce PerensBruce PerensBruce Perens is a computer programmer and advocate in the open source community. He created the Open Source Definition and published the first formal announcement and manifesto of open source. He co-founded the Open Source Initiative with Eric S...
' analysis of the code that SCO alleges is in violation of their copyright - Eric Raymond's analysis of the code that SCO alleges is in violation of their copyright
- SCO's 294 Alleged Violations (Technology Disclosures)
Photographs
- Photograph of a piece of controversial code, taken at SCO Forum
- Photograph of a piece of controversial code, taken at SCO Forum
