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Analysis: SCO's case against IBM stands on shaky ground

If true, SCO's case against IBM should be easy to prove

(LinuxWorld) — Caldera Systems, Inc. d/b/a The SCO Group v. International Business Machines Corp. is the first case I could find that involves intellectual property and Linux. At the heart of SCO's complaint are allegations that IBM signed a license to study and use SCO's source code to improve IBM's AIX and that IBM's release of SCO source code to developers has harmed SCO. This is the first time anyone has claimed in a state or federal court that proprietary intellectual property has found its way into Linux. What does this case mean to Linux? Let's find out.

SCO's 40-page, 9,000-word complaint is the opening shot in its battle against IBM. A complaint is supposed to be a short, plain statement of the claim that shows the plaintiff's entitlement to some relief. It also should show that the court receiving the complaint is the right place for the dispute.

SCO claims IBM is destroying the Unix market by taking knowledge the company gained via its source-code license to Unix and sharing this knowledge with the Linux community. This alleged action strengthens Linux, and, because Linux is no-cost or almost-no-cost, it cuts the legs out from under SCO's market. SCO claims IBM's duplicity has damaged SCO to the tune of $1 billion.

A complaint need not cite evidence, which frustrates journalists and commentators alike. We want all the facts laid out, novel-like, so we can inform the public, critique the case and decide who should win before the litigants even step foot in court. Does this lack of evidence prevent us from opining anyway? Of course not!

SCO's three-legged stool

SCO's complaint consists of 136 averments — i.e., statements of fact — that form the basis of SCO's four main claims (called causes of action in the legal trade) against IBM. Every statement in a complaint is supposed to be truthful, and I think this is where SCO starts to run into trouble. If I were an advisor to IBM's legal team, I'd suggest looking closely at three suppositions that support almost all of SCO's arguments. Knocking any of the following would, I believe, all but destroy SCO's case.

Averment 96: "IBM's AIX contributions" (to Linux) consisted of the improper extraction, use, and dissemination of SCO'S UNIX source code and libraries, and unauthorized misuse of UNIX methods, concepts, and know-how.

AT&T started development of Unix in 1969. AT&T and IBM signed an agreement in 1985 that gave IBM access to the source code for Unix. IBM agreed to keep the source code confidential. In 1992, AT&T sold Unix to Novell, which later sold Unix to SCO.

SCO assumes IBM released SCO's proprietary information to the Linux community. This should be easy for SCO to prove. All SCO need do is use the Unix program "diff" on its code and the code IBM released. If the code is the same, SCO has its smoking gun. However, Unix has such a rich and diverse heritage that such evidence may not show anything.

What if, as Joe Barr points out, SCO's vi is the same as IBM's? Identical text editors show very little. SCO needs to show that crucial areas of Linux benefited from SCO's technology and that IBM was the conduit for that information.

SCO's complaint shows a handful of news accounts in which IBM officials claim the company will help improve Linux. However, this doesn't serve as proof that IBM violated its agreement to keep SCO's proprietary code secret.

It's incumbent upon SCO to prove that IBM violated its non-disclosure agreement, and absent a smoking gun, I think SCO has a tough row to hoe.

Averment 86: It is not possible for Linux to rapidly reach UNIX performance standards for complete enterprise functionality without the misappropriation of UNIX code, methods or concepts to achieve such performance, and coordination by a larger developer, such as IBM. Averment 99: The only way that the pathway is an "eight-lane highway" for Linux to achieve the scalability, SMP support, fail-over capabilities and reliability of UNIX is by the improper extraction, use, and dissemination of the proprietary and confidential UNIX Software Code and libraries. Indeed, UNIX was able to achieve its status as the premiere operating system only after decades of hard work, beginning with the finest computer scientists at AT&T Bell Laboratories, plaintiff's predecessor in interest.
Let's assume that IBM, and not the network of Linux-kernel developers, is responsible for Linux achieving enterprise functionality. As the developer of a half-dozen other operating systems designed for enterprise use, it is also possible that IBM applied the fruits of its experience with those operating systems in improving Linux.

Yes, Linux has become more reliable and feature-filled over the past 12 years, but hard work by a wide-ranging group of people, and not theft, could be responsible. If IBM did release source code that made Linux more suitable for enterprise use, then IBM needs to show that it was based on IBM's technology, not something lifted from SCO.

Averment 103: But for IBM's coordination of the development of enterprise Linux, and the misappropriation of UNIX to accomplish that objective, the Linux development community would not timely develop (sic) the quality or customer support necessary for wide-spread use in the enterprise market.

Perhaps Linus Torvalds and Alan Cox can describe the quantity and quality of the developers working on the Linux kernel. Just because Linux was developed in a distributed manner that differs from SCO's approach does not mean it is of low quality and could not attain the features of an enterprise-ready product.

Torvalds and Cox shouldn't be surprised if they receive a subpoena to appear at a deposition to offer testimony on how the Linux kernel is developed and how much IBM code now appears in the kernel.

Minor factual gaffes

SCO made a surprising number of factual errors in its complaint. Hopefully, the Utah rules of civil procedure grant the plaintiff one opportunity to amend their complaint before a judge looks at the case, which is the rule in US federal court. I saw seven averments with factual errors:

Averment 13: The UNIX operating system was built by AT&T Bell Laboratories. Initially, UNIX was used to power AT&T's telecommunications business.

According to the Unix histories I've read, Unix's first application was a game. Unix was first applied to business use as a typesetting system for AT&T's patent department. While Unix became more popular as developers added features, it did not see duty "powering AT&T's telecommunications business," which I assume SCO means as running AT&T's switches, until many years later.

Averment 14: After successful in-house use of the UNIX software, AT&T began to license UNIX as a commercial product for use in enterprise applications by other large companies.

The Unix developers at AT&T Bell Labs had little idea what to do with Unix, and they consequently licensed it to universities for study, instruction and, as a natural byproduct, additional development. Sales of an operating system were not a priority for the telephone monopoly.

Averment 17: All commercial UNIX "flavors" in use today are based on the UNIX System V Technology ("System V Technology").

Apple, with the largest installed base of Unix computers, might disagree with this statement. Mac OS X is based on BSD, which is a spin-off of a predecessor to Unix System V, and has none of AT&T's original source code. A system administrator or user familiar with Linux or IBM's AIX would feel right at home on a machine running BSD. Red Hat and SuSE, which is certainly a vendor to enterprises, might also disagree with this averment.

Averment 23: The enterprise computing market for high-performance (and higher priced) workstation computers came to be dominated by UNIX and the primary UNIX vendors identified above, each operating on a different processor chip set, and each using UNIX pursuant to licenses from AT&T/SCO. Except for SCO, none of the primary UNIX vendors ever developed a UNIX "flavor" to operate on an Intel-based processor chip set. This is because the earlier Intel processors were considered to have inadequate processing power for use in the more demanding enterprise market applications.

Sun Microsystems needs to improve its marketing efforts for Solaris x86.

Averment 77: Related to the development of the open source software development movement in the computing world, an organization was founded by former MIT professor Richard Stallman entitled "GNU."

RMS may be surprised to learn he is a former MIT professor.

Averment 78: The primary purpose of the GNU organization is to create free software based on valuable commercial software. The primary operating system advanced by GNU is Linux.

The Free Software Foundation, which supports the GNU Project, develops software that is not proprietary. Its software works with virtually every version of Unix, including Linux. It's a stretch to suggest that the FSF "advances" Linux. In fact, the FSF is developing a competitor to Linux, which it calls "the Hurd."

Averment 79: In order to assure that the Linux operating system (and other software) would remain free of charge and not-for-profit, GNU created a licensing agreement entitled the General Public License ("GPL").

SCO seems to confuse cause with effect, as well as dates in history. The GPL precedes development of the Linux kernel by at least five years.

Logical oversights

SCO's complaint also contains numerous averments that leap to conclusions that are most favorable to SCO. That's common — and even expected — in complaints. I expect IBM will deny each of the following averments:

Averment 41: Shared libraries are by their nature unique creations based on various decisions to write code in certain ways, which are in great part random decisions of the software developers who create the shared library code base. There is no established way to create a specific shared library and the random choices in the location and access calls for "hooks" that are part of the creation of any shared library. Therefore, the mathematical probability of a customer being able to recreate the SCO OpenServer Shared Libraries without unauthorized access to or use of the source code of the SCO OpenServer Shared Libraries is nil.

Reverse-engineering can accomplish this without the developer ever seeing the source code. There are many examples of this in the computing world, including Samba, Wabi, WINE and Dot-GNU.

Averment 82: Linux started as a hobby project of a 19-year old student. Linux has evolved through bits and pieces of various contributions by numerous software developers using single processor computers. Virtually none of these software developers and hobbyists had access to enterprise-scale equipment and testing facilities for Linux development. Without access to such equipment, facilities, sophisticated methods, concepts and coordinated know-how, it would be difficult or impossible for the Linux development community to create a grade of Linux adequate for enterprise use.

Apparently, the engineering teams at Red Hat and SuSE are not on SCO's radar.

Averment 91: Among other actions, IBM misappropriated the confidential and proprietary information from SCO in Project Monterey. IBM thereafter misused its access to the UNIX Software Code. On or about August 17, 2000, IBM and Red Hat Inc. issued a joint press release through M2 Presswire announcing, inter alia, as follows:

"IBM today announced a global agreement that enables Red Hat, Inc. to bundle IBM's Linux-based software.

IBM said it would contribute more than 100 printer drivers to the open source community. With these announcements, IBM is making it easier for customers to deploy e-business applications on Linux using a growing selection of hardware and software to meet their needs.

The announcements are the latest initiative in IBM's continuing strategy to embrace Linux across its entire product and services portfolio.

Helping build the open standard, IBM has been working closely with the open source community, contributing technologies and resources."

Interesting conclusion, in light of other statements in the complaint that indicate Project Monterey was an effort to develop 64-bit computing for Unix. Perhaps one of Project Monterey's accomplishments was the development of more than 100 64-bit printer drivers.

In averments numbered 92 through 98, SCO references five news reports that quote three IBM officials who state that IBM will release portions of AIX to Linux developers. The quotes appear to damn IBM on first glance. However, none of the quotes state that IBM has already released information owned by SCO. Aside from drivers for IBM printers, the extent of IBM's code release is JFS, which is a technology based on IBM's OS/2.

What's next

Assuming IBM received notice of this complaint in a proper, legally prescribed manner, what is IBM supposed to do? It's unlikely SCO really believes a $1 billion pot of gold awaits at the end of this lawsuit, and IBM knows this. It's likely that officers at IBM and SCO have already spoken to discuss exactly what SCO wants from IBM.

IBM has a time constraint. In conjunction with this lawsuit, SCO is invoking a contractual provision stating that if IBM failed to fulfill its obligations, SCO has the right to terminate IBM's license, which requires IBM to "discontinue use of our... products and return or destroy all copies of software products subject to the... agreements."

The clock is ticking for IBM, and time runs out on June 13, 2003. What this actually means for IBM is unclear. Will IBM be able to continue to sell computers using AIX after June 13? The agreements SCO posted on its Web site are unclear on this question.

One outcome is that the parties will settle this lawsuit before IBM files an answer to SCO's complaint. Another outcome, obviously, is that IBM files an answer and the parties begin firing salvos of paperwork back and forth as SCO tries to uncover evidence of IBM violating the terms of the agreements. IBM may want to move the lawsuit to a federal court. IBM or SCO could add other parties to the suit.

Hypothetically, if SCO uncovered evidence that Torvalds conspired with IBM to add SCO's code to Linux, Torvalds could find himself to be a co-defendant.

Ultimately, SCO and IBM could wind up in court where a jury will decide if IBM broke its promises, and if it did, what damages SCO should recover.

What does this mean to Linux users?

In the short- and medium-term, absolutely nothing. Should the case go to trial, it will be years before the appeals are settled. In the long term, should any proprietary code be found in the kernel or any other crucial program, the Linux community will have ample notice to rip out the offending lines and replace them.

This case serves as a reminder that organizations take non-disclosures seriously. Unfortunately for SCO, it is hard to take their complaint seriously unless they can provide ample, undisputed evidence to support the bold averments contained therein.

More Stories By Mark Cappel

Mark Cappel is the editor of Linux.SYS-CON.com.

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