[olug] GNU/Linux Might Be Free of SCO Threats

[Jay Swackhamer]

http://mozillaquest.com/Linux03/ScoSource-24-Copyrights_Story01.html


GNU/Linux Might Be Free of SCO Threats
SCO Agrees IBM Owns AIX, JFS, NUMA, RCU Copyrights

By Mike Angelo -- 25 July 2003 (C)
SCO-Caldera v. IBM:

SCO-Caldera Sues IBM in Intellectual Property Dispute

UNIX-Linux Dispute, a PR Nightmare for Caldera

Linus Torvalds Comments on SCO-Caldera's Linux-Related Allegations

Conectiva's Gordon Ho Responds to SCO-Caldera's Linux-Related Allegations

Alan Cox, Richard Gooch, and Dave Weinehall Respond to SCO's Linux-Related
Claims

IBM Replies to Some SCO Allegations but Hides Lots Too

IBM Moves Lawsuit from State to Federal Court -- IP Attorney John Ferrell
and MozillaQuest Magazine's Mike Angelo Discuss the Lawsuit

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

German Courts order SCO-Caldera to Stop Anti-Linux FUD - German Penguins
Launch Successful Counter-Attack in SCO v Linux War

Munich Court Rules SCO Anti-Linux Statements FUD - Tarent Seeks Contempt
Order Against SCO

Only 80 Lines of Common Unix and Linux Code -- SCO-Caldera Shows No Proof
That Linux Was Derived from Unix

SCO Registers Unix System V Copyrights -- IBM, SuSE, and Richard Gooch
Deny SCO-Caldera Copyright Claims
SCO-Caldera & the GNU/Linux Community:

Part 1: The SCOsource IP Matter

Part 2, Under the Iceberg's Tip

SCO-Caldera does not own the copyrights to JFS (Journaling File System),
RCU (Read, Copy, and Update), NUMA (Non-uniform Memory Access) software,
and other IBM-developed AIX code that IBM contributed to the Linux kernel.

That could make it very difficult for SCO-Caldera to pursue its threatened
copyright infringement claims against GNU/Linux users who refuse to buy
SCO UnixWare licenses in order to run the GNU/Linux operating system.

SCO (SCOX) says it now owns the Unix System V copyright registrations.
However SCO also now agrees that it does not own the IBM-developed AIX
code copyrights. SCO-Caldera also admits that it does not own the
copyrights for the JFS, RCU, and NUMA software code that IBM contributed
to the Linux kernel -- or other IBM-developed AIX code that IBM
contributed to the Linux kernel.

SCO announced Monday in a press release that:

it has received U.S. copyright registrations for UNIX System V source
code, a jurisdictional pre-requisite to enforcement of its UNIX
copyrights. The company also announced it will offer UnixWare(R) licenses
tailored to support run-time, binary use of Linux for all commercial users
of Linux based on kernel version 2.4.x and later. SCO will hold harmless
commercial Linux customers that purchase a UnixWare license against any
past copyright violations, and for any future use of Linux in a run-only,
binary format.

Darl McBride, SCO CEO, repeated that announcement in a telephone press
conference for journalists and analysts Monday.

In our 22 July article, IBM, SuSE, and Richard Gooch Deny SCO-Caldera
Copyright Claims, we looked into the question, Just What Unix or Linux
Intellectual Property Does SCO Own?

An important question in the SCO IP sagas has been whether SCO-Caldera
owns copyrights for JFS (Journaling File System), RCU (Read, Copy, and
Update), NUMA (Non-uniform Memory Access) software, and other AIX code
that IBM contributed to the Linux kernel. Simply put these are important
code packages that help to make GNU/Linux an enterprise and server grade
operating system.

In our 22 July article, IBM, SuSE, and Richard Gooch Deny SCO-Caldera
Copyright Claims, we reported an exclusive statement given to MozillaQuest
Magazine from IBM's Trink Guarino, Director of IBM Media Relations, that
IBM says it owns the JFS, RCU, NUMA software, and other IBM-developed AIX
code that IBM contributed to the Linux kernel.

      IBM owns the copyrights for the work we've done in AIX, JFS, RCU and
the code that takes advantage of NUMA hardware. (Trink Guarino)

In that 22 July article Trink Guarino also told MozillaQuest Magazine:

      SCO has not shown us any code contributed to Linux by IBM that
violates SCO copyrights. SCO needs to openly show the Linux
community any copyrighted Unix Code, which they claim is in Linux.
SCO seems to be asking customers to pay for a license based on
allegations, not facts.

There is a clarification that needs to be made here. AIX is a combination
of SCO's Unix System V code and IBM developed code. IBM is not claiming to
own the Unix System V code included in AIX, IBM's adaptation of Unix. IBM
is laying claim only to the AIX code that IBM developed.

Yesterday MozillaQuest Magazine received a response from SCO Director of
Corporate Communications, Blake Stowell, to questions we had asked him on
Monday.

It appears from Blake Stowell's answers to the copyright-related questions
that SCO says it does not have copyrights to JFS, RCU, and NUMA software
code or to items (a) through (k) of paragraph 108 of SCO's Amended
Complaint in the SCO-Caldera v IBM lawsuit.

It also appears from Blake Stowell's answers that SCO does not claim
copyright to any of the IBM-written AIX code. All SCO claims copyright to
in AIX is that AIX code which is Unix code that was included with System V
code that IBM licenses from SCO.

That seems to remove most, if not all, SCO's claims that the Linux kernel
contains SCO-copyrighted code.

Here is the uncensored interview:

MozillaQuest Magazine: Does SCO have registered copyrights for JFS, NUMA,
and RCU?

Blake Stowell: No we don't, but this is not a copyright case. This is a
contracts case. We have taken IBM to court because they are in breach of
contract.

MozillaQuest Magazine: If so, is that the same JFS, NUMA, and RCU code
that is in the Linux kernel?

Blake Stowell: I can't give you the exact location, but yes, it is in Linux.

MozillaQuest Magazine: Does SCO have registered copyrights for the Unix
extensions developed by IBM?

Blake Stowell: No, IBM has those copyrights, but this is not about
copyrights. It is about the breaking of a contract.

MozillaQuest Magazine: If not, does SCO claim that it is entitled to
register copyrights for the Unix extensions developed by IBM?

Blake Stowell: SCO will not register those because they do not belong to
SCO. They belong to IBM.

MozillaQuest Magazine: Analyst Bill Claybrook says that he was shown only
about 80 lines of identical IHV [independent hardware vendor] Linux kernel
code and Unix code. Other than Laura Didio, is there anyone who says there
are more than 80 lines of such identical Linux Kernel code and Unix code?

Blake Stowell: They are stating that because that is what we have shown in
our code viewing interviews. That is the tip of the iceberg. There is much
more in Linux. Hundreds of files, not lines of code, but files.

MozillaQuest Magazine: Does SCO have registered copyrights for:

(a) scalability improvements,

(b) performance measurement and improvements,

(c) serviceability and error logging improvements,

(d) NUMA scheduler and other scheduler improvements,

(e) Linux PPC 32- and 64-bit support,

(f) AIX Journaling File System

(g) enterprise volume management system to other Linux components,

(h) clusters and cluster installation, including distributed lock manager
and other lock management technologies,

(i) threading,

(j) general systems management functions, and

(k) other areas.

Blake Stowell: SCO does not have copyrights on these, but as stated
earlier, this is not about copyrights. It is about a contract. SCO had a
contract with IBM that said that once licensed, they had to hold this
software in confidence. AIX is based on UNIX System V source code. Any
derivative work has to be held in confidence. They have not held the AIX
code in confidence, which is why we have a lawsuit against them.

This distinction that the SCO-Caldera v IBM lawsuit is about contracts and
not copyrights is very important. This lawsuit is about breach of contract
and other tort claims. It is not about copyright infringement.

One reason this distinction is so important is because the evidence and
proof of facts required in a tort and breach of contract lawsuit are not
exactly the same as the evidence and proof of facts required in a
copyright infringement lawsuit. SCO-Caldera does not necessarily need to
own the Unix copyrights or patents to win this tort and breach of contract
lawsuit against IBM.

SCO-Caldera's admissions that IBM owns the copyrights to IBM developed AIX
code, JFS, NUMA software, RCU, and so forth does not end the SCO v IBM
controversy. It simply, boils down the SCO v IBM controversy to a dispute
about whether IBM-developed AIX code, JFS, NUMA software, RCU, and so
forth are derivative works and whether they are part of the Unix Software
Product under the Unix licenses.

To establish breach of contract under the Unix licensing and other
contracts SCO has with IBM, SCO merely has to show that IBM disclosed
parts of its Unix/AIX code to the GNU/Linux community or merely disclosed
Unix/AIX methods, concepts, or trade secrets to the GNU/Linux community --
and that such conduct is not allowed under the Unix licensing agreements
and contracts.

What SCO-Caldera has to prove to win this tort and breach of contract
lawsuit is that IBM violated its contractual agreements with AT&T, Novell,
and SCO regarding Unix. The AT&T and Novell contracts come into play
because SCO-Caldera acquired them when SCO purchased Novell's Unix
business in 1995. Novell acquired Unix from AT&T in 1993.

SCO-Caldera being able to prove that IBM-developed AIX code, JFS, NUMA
software, RCU, and so forth are derived works under the Unix licenses is
the critical and key issue to SCO proving that IBM breached the Unix
license agreements. So proving they are derived works brings the IBM
developed AIX code, JFS, NUMA software, RCU, and so forth under the
umbrella of Unix Software Product as set forth in the Unix Licenses.

That's because the Unix license prohibits IBM from disclosing Unix
Software Product code, methods, secrets, and so forth to third parties.
Simply put, if SCO-Caldera can prove that IBM-developed AIX code, JFS,
NUMA software, RCU, and so forth are derivate works and therefore part of
the Unix Software Product and that IBM disclosed the code, methods,
secrets and for them to the Linux developers, then SCO wins its IBM
lawsuit.

More about this in our (upcoming) articles, SCO-Caldera v IBM Complaint
Changed Dramatically and Are SCO's Rebuilt IBM Lawsuit and Unix License
Revocation Winners -- Or More SCO FUD?, So please make sure to check the
MozillaQuest Magazine front page to see when they are published.


-- 
Jay Swackhamer
Reboot The User
15791 West Dodge Road
Suite 135
Omaha, NE 68118
(402) 933-6449
(402) 933-6456 Fax
http://www.RebootTheUser.com