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SCO v. IBM Linux lawsuit

On March 7, 2003, the SCO Group (formerly known as Caldera Systems) filed a $1 billion law suit in the US (recently tripled to $3 billion) against IBM for allegedly "devaluing" its version of the UNIX operating system. SCO claimed that IBM had, without authorization, contributed SCO's intellectual property to the codebase of the open source, Unix-like Linux operating system. SCO Group was also reported to have sent letters to many large companies, warning them of the possiblity of liability.

The major claims have now been reported as relating to the following components of the Linux kernel:

The lawsuit has caused outrage among the free software and open source communities. Some open source advocates have argued (among other arguments):

  • 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 provenance[?] 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, that this did not necessarily mean that the code was copied from SCO UNIX to Linux, rather than vice versa, or that both pieces of code were not in fact legitimately copied from some other source such as one of the open source BSD-derived operating systems;

  • that even if Linux did contain copied SCO UNIX code, that the UNIX source code had already been made widely available without a non-disclosure agreement, and so had no trade secret status;

  • 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 distribution) under the GNU General Public License, both before and after their announcement.

Table of contents

The GPL issue

According to Eben Moglen[?], the Free Software Foundation's legal counsel, SCO's suit should not concern Linux users other than IBM. In an interview with internetnews.com, he is reported as saying:

"There is absolute difficulty with this line of argument which ought to make everybody in the world aware that the letters that SCO has put out can be safely put in the wastebasket," ...

"From the moment that SCO distributed that code under the GNU General Public License, they would have given everybody in the world the right to copy, modify and distribute that code freely," ... "From the moment SCO distributed the Linux kernel under GPL, they licensed the use. Always. That's what our license says."

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 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."

Novell enters the controversy

Novell entered the controversy by publishing on May 28 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 also recently announced that it had "discovered" an amendment to their contract with Novell transfering partial ownership to SCO, however Novell can't find that file.

What SCO claims

It has been reported that SCO has variously threatened to sue Linux users and even Linus Torvalds himself. Computerworld reported that SCO's Chris Sontag, regarding the alleged infringements, said:

"It's very extensive. It is many different sections of code ranging from five to 10 to 15 lines of code in multiple places that are of issue, up to large blocks of code that have been inappropriately copied into Linux in violation of our source-code licensing contract. That's in the kernel itself, so it is significant. It is not a line or two here or there. It was quite a surprise for us."

On May 30, 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. [1] (http://www.informationweek.com/story/showArticle.jhtml?articleID=10100587) To put this into context, David Wheeler's SLOCCount (http://www.dwheeler.com/sloc/redhat71-v1/kernel_sloc) 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. [2] (http://www.dwheeler.com/sloc/)

Fear, uncertainty and doubt

A number of Linux supporters have characterized SCO's actions as an attempt to create fear, uncertainty and doubt about Linux. Many believe that SCO's aim is to be bought out by IBM. Others have have pointed to Microsoft's subsequent licensing of the SCO source code as a possible quid pro quo for SCO's action.

Univention Gmbh (http://www.univention.de/), a Linux integrator, reports it was granted an injunction by a Bremen court under German competition law that prohibits the SCO Group's German division from saying that Linux contains illegally obtained SCO intellectual property. If the SCO Group continues to express this position, they would have to pay a fine of 250,000 Euros.

Reactions from Linus Torvalds

On May 30, Linus Torvalds was quoted by IDG.net as saying, regarding the case:

"Quite frankly, I found it mostly interesting in a Jerry Springer kind of way. White trash battling it out in public, throwing chairs at each other. SCO crying about IBM's other women. ... Fairly entertaining".

In an interview on June 23rd Torvalds responded to SCO's allegation that Linux development had no process for vetting kernel contributions:

"I allege that SCO is full of it, and that the Linux process is already the most transparent process in the whole industry. Let's face it, nobody else even comes close to being as good at showing the evolution and source of every single line of code out there."

Allegations of reverse copying

EWeek has reported allegations that SCO may have copied parts of the Linux kernel into SCO UNIX as part of its Linux Kernel Personality feature (see the EWeek report below). SCO has denied these allegations. Some open-source advocates have suggested that, if true, this may effectively have obligated SCO to release SCO UNIX source under the terms of the GPL to customers who have received SCO UNIX binary distributions.

IBM's AIX licence

Reuters has reported that the SCO Group intends to revoke IBM's licence to use UNIX code in their AIX operating system on Friday, June 13 if no resolution is reached before then. IBM responded that they believe that SCO has no power to do so, as their license is "irrecovacable". On the following Monday, June 16, CNET news.com reported that SCO had announced that it had terminated IBM's licence. IBM continues to distribute and support AIX, and the SCO Group now states that they will be seeking an injunction to force IBM to not only stop selling and supporting AIX, but to either return to the SCO Group or destroy all copies of the AIX operating system.

Kernel programmer's letter to SCO

On 15 June, 2003, The Inquirer reported 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 licenced under the GPL. According to the letter reproduced there, the programmer claimed that SCO's doing so was an infringement of his own copyright.

Scheduler code claims

Also on the 15 June, postings on slashdot.org and The Inquirer have reported claims that:

  • SCO's claimed copied code was shown without NDA in Germany by mistake
  • the code seen was in the Linux kernel scheduler, one of the most heavily-scrutinized parts of the Linux kernel

Increased damages claims, and read-copy-update claims

As of 17 June, CNET news.com reported that SCO has increased its claims of damage to $3 billion, and has stated that the read-copy-update[?] code in the Linux kernel is an example of code that infringes its rights. This technique is widely believed to have been developed at Sequent Computer Systems, who were then bought by IBM, who have been reported as holding several patents on this technique.

SCO announces that it will not sue its own customers

On June 23, SCO sent out a letter announcing that it would not be suing its own Linux customers. [3] (http://www.caldera.com/scosource/letter_to_partners). In the letter, it states:

SCO will continue to support our SCO Linux and OpenLinux customers and partners who have previously implemented those products and we will hold them harmless from any SCO intellectual property issues regarding Linux.
Some observers have stated that in doing so, SCO may have granted the same rights to other Linux users who obtained a copy of Linux from an SCO partner under the terms of the GPL. Others have stated that to "hold somone harmless" is different from a grant of rights, and that SCO has not made a grant of rights in writing this letter. Others believe that this letter is moot, as a grant of rights was made by SCO by the act of releasing the software under the GPL in the first place. This action may also signal the grounds for a GPL violation suit against SCO as it is seeking different terms of distribution of works for its own customers than other recipients of the same work.

Free Software Foundation response

On June 25, Eben Moglen, the counsel for the Free Software Foundation, released a fuller statement regarding the SCO lawsuit. In this statement, he reiterates many of the points made above, and states that:

"As to its trade secret claims, which are the only claims actually made in the lawsuit against IBM, there remains the simple fact that SCO has for years distributed copies of the kernel, Linux, as part of GNU/Linux free software systems. [...] There is simply no legal basis on which SCO can claim trade secret liability in others for material it widely and commercially published itself under a license that specifically permitted unrestricted copying and distribution."

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