March 7, 2003

SCO follows David Hannum’s 'sucker' theory in lawsuit against IBM

- by Tina Gasperson -
Apparently taking to heart the adage, "Thereâs a sucker born every minute", SCO yesterday filed a lawsuit against customer IBM, stating that big blue violated Unix licensing agreements by allegedly using and encouraging other companies to use the source code for AIX in Open Source projects. My god, McBride. Are you really that desperate for funds? It sure sounds like it, according to what you said in your teleconference this morning.The suit is asking for one billion dollars in damages and would require IBM to âcease anti-competitive practicesâ or else SCO gets to revoke IBMâs AIX license. SCOâs chief executive officer Darl McBride says that from his standpoint 'we have an extremely compelling case against IBM.'

The formal complaint, filed March 6, 2003, alleges that as market awareness of Linux grew, âIBM initiated a course of conduct with the purpose and effect of using Linux to unfairly compete in the enterprise market,â and that IBM âdeliberately set out to destroyâ Unix and the economic value of Unix on Intel processors.

McBride reiterated several times in his press conference that the case is only about an impasse with IBM, and not directed toward Linux or the Linux community. Yet, the complaint leaves a door open to implication of Red Hat in the use of SCOâs intellectual property:

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 IBMâs 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 IBMâs 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."

SCO believes it can make the courts believe that the statements in said press release can be construed as proof that IBM 'misappropriated' confidential and proprietary information from SCO. Theyâve even included what they assert are direct quotes from IBM vice president Robert LeBlanc in which he states IBM's intention to donate parts of AIX to the open source community. In the complaint, SCO quotes LeBlanc as follows:

"If Linux had all of the capabilities of AIX, where we could put the AIX code at runtime on top of Linux, then we would.

"Right now the Linux kernel does not support all the capabilities of AIX. Weâve been working on AIX for 20 years. Linux is still young. Weâre helping Linux kernel up to that level. We understand where the kernel is. We have a lot of people working now as part of the kernel team. At the end of the day, the customer makes the choice, whether we write for AIX or for Linux.

"Weâre willing to open source any part of AIX that the Linux community considers valuable. We have open-sourced the journal filesystem, print driver for the Omniprint. AIX is 1.5 million lines of code. If we dump that on the open source community then are people going to understand it? Youâre better off taking bits and pieces and the expertise that we bring along with it. We have made a conscious decision to keep contributing."

On the surface, those comments seem fairly damning, but letâs think outside the box for a moment, something Bruce Perens is used to doing. "IBM is smart enough not to open source other peopleâs intellectual property," he says. "Maybe the comment about being willing to open source any part of AIX that the Linux community considers valuable simply means that there is no portion of AIX that would be considered valuable by the Linux community."

Not only that, but thereâs the obvious contention that comments are comments, and the proof is in the actual code. "I do think the person who said those things wasnât considering all the ramifications of the statement," says Perens. "However, rather than a very informally stated intention, Iâd like to see one line of SCO code that actually appears in Linux, rather than SCOâs allegation - which seems to be that the ideas, not the actual implementation, were copied."

The problem with potential allegations about ideas being 'recycled' is that ideas are not considered intellectual property. Ideas are typically protected by patents. SCO doesnât have a lot of patents, after all, and therefore couldnât use that weapon to stop IBM or anyone else from implementing ideas.

Perens says that the most powerful weapon SCO could potentially have is contract law. "It sounds more like this is an NDA (non-disclosure agreement) case. But even then, you have to consider the fact that since 1970, Unix source code has been available on university campuses."

The implication is that the ideas behind Linux, while almost certainly coming from ideas in Unix (after all, Linux calls itself a âUnix-likeâ operating system), have not come from IBM, but from university students around the world.

"In general, people got out of college having already seen the Unix source code. So for SCO to say, 'Oh no, they canât use the knowledge that they gained in school.' -- Well, itâs going to be extremely simple to shoot that down in court."

So why is SCO doing this? Perens says they want to get bought - but get this - by IBM itself. Perens says that SCO, AKA Caldera, has always been run by investment firms. "This is [the current investment firmâs] exit strategy," he says. "IBM can buy them just to shut them up and finally own all of the Unix stuff.

"IBM doesnât have to settle with a company this small. They can just eat them."

Perens doesnât believe SCO realistically thinks it has a chance of winning this lawsuit. "In filing this suit they have put a gun to the head of their own software business and pulled the trigger. No one in the Linux world will ever recommend them for anything again, and other people will look at this and say 'no, this too nutty, I donât trust these guys.'"

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