Analysis of SCO vs. IBM

icantblvitsnotbutter writes "An excellent -- and clear! -- article over at LinuxWorld.com has a multipoint analysis of SCO's 40-page complaint (this is a brief?!). For all those IANAL's out there, here's something to sink your teeth into. On the balance, the outlook seems positive for IBM. Still, the parallel invocation of a contractural clause potentially nixing AIX lends some credence to claims that this is a just way for SCO to coerce IBM into buying them out..." Some old documents from a similar lawsuit have surfaced, and naturally ESR has his own take on the case.

Re:Almost nothing new here

[PerryMason]

What I would have really liked is something on the lines of "Here is patent number 1" and here is how linux is different/same.....It is not as if SCO patent reads like "WE patent UNIX and everything that looks like it. And that is that

Quoting from the SCO complaint;
18. SCO is the present owner of all software code and licensing rights to System V Technology.

Pretty much summarises what they are saying.

Re:Nice brief

[Anonymous Coward]

Caldera bought SCO's Unix assets a couple of years ago, and now "Caldera" does business as the "SCO Group".

Re:In ESR's take...

[BacOs]

Amicus Curiae [techlawjournal.com]

Definition: Latin term meaning "friend of the court". The name for a brief filed with the court by someone who is not a party to the case

Slashdot interview...

[gmuslera]

I don't remember it this was posted already in previous discussions, but in this interview with IBM Kernel Hackers [slashdot.org] from last year, some points are raised, some good and some bad for IBM, specially in the 2nd question. In short, the people at IBM that was into the linux kernel development can't take parts of i.e. AIX code and put into Linux and viceversa, but some interchange of ideas could have been happened if a developer of one team talks with one of another.

definition of Amicus Curiae

[sczimme]

Black's Legal Dictionary defines amicus curiae: "A person with a strong interest in or views on the subject matter of an action may petition the court for permission to file a brief ostensibly on behalf of a party, but actually to suggest a rationale consistent with its own views. Such amicus curiae briefs are commonly filed in appeals concerning matters of broad public interest; e.g. civil rights cases".

I found this item here [mumia2000.org].

Re:Slashdot interview...

[binaryDigit]

some points are raised, some good and some bad for IBM, specially in the 2nd question

They answered:

We are definitely not allowed to cut and paste proprietary code into any open source projects (or vice versa!). There is an IBM committee who can and do approve the release of IBM proprietary or patented technology, like RCU.

I don't see how this is "bad" for IBM. It shows that they are actively protecting any proprietary interests to the point that they actually have a committee.

but some interchange of ideas could have been happened if a developer of one team talks with one of another.

Again they replied:

Having solved the problem once, our non-Linux peers can help steer us without spelling it out for us, allowing us to still develop solutions that can then be open sourced.

Again, IBM seems to be keenly aware of the cross pollenation issue and actively taking steps to avoid any issues. It reads to me like it's all pro IBM?

Re:Random Programming

[Anonymous Coward]

It is also interesting that SCO actually appears to believe that. Even without the headers the API to any library can be reverse engineered with nm and gdb in about two days.

As for "Shared libraries are by their nature unique creations..." I'm not even sure where to start. How is some code a "unique creation" simply because I have compiled it as a shared library? If I build it as a static library, is it no longer unique? Do SCO not understand that one of the points of using shared libraries is that they are inherently interchangable? That one just makes my head spin.

Finally, I also seem to remember Linus owning a Quad Xeon box, back in the mid-90's. So whats this about the Linux developers only having uniprocessor boxes?

It's not a claim.

[rjh]

... Not in the legal sense of the word, at least. You can't walk into a courtroom and say "your Honor, I claim the sky is blue". Sure, in the English sense of the word it's a claim; in the legal sense of the word, it's not a claim because it lacks standing before the court. I.e., great, the sky's blue: why should the court care? Great, IBM helped Linux get ready for the enterprise: why should the court care?

A claim is basically a statement of "... and this is why the court should care". So far, SCO's argument about why the court should care doesn't hold water. I'm not worried.

Re:Almost nothing new here

[Eunuchswear]

Ah, but a distinction - it seems the SCO people are willfully blurring the patent/copyright issue. Yes, they have patents on Unix. No, it doesn't extend to EVERYTHING about Unix. And I bet they don't have a patent, say, System V startup script formats.

SCO has no patents at all. None. Follow the Patents, People [ssc.com]

Re:Slashdot interview...

[Vlad_the_Inhaler]

That was in the ESR rebuttal, something that seemed to me - IANAL - to be far more informative than that somewhat vague LinuxWorld article.
If ESR has done his homework, and it certainly looks like it, then over 90% of that document of his looks as though it could be used to murder that lawsuit in very short order.

Re:Slashdot interview...

[AxelTorvalds]

I was one of the reviewers of the IBM opensource guidelines back in 1996 or 1997.

Stealing code was a paramount concern. It's accounted for.

SCO SMP licensed from Corollary; 2 more i386 UNIX

[Anonymous Coward]

One trivia point: SCO's SMP implementation was not written by SCO but was licensed from Corollary.

Two more i386 ports that ESR has forgotten about: Altos (later purchased by Acer). I was one of the engineers that ported SCO 3.2.0 (or was it 3.2.2?) to the Altos 1000 (see Google groups for info). The second is the "Sun 386i" 80386 computer which everybody seems to have forgotten about. Again, see Google groups.

IMHO the only thing of value SCO was to contribute to Monterey was the X server.

I believe that from a legal standpoint AIX is licensed SVR3 code (although having seen AIX kernel code, SCO OpenServer and UnixWare source, and "pure" virgin SVR3 code I can attest that AIX is a complete overhaul and bears no resemblence to pure SVR3 (or SVR4) except in the bowels of STREAMS).

full disclosure: ex-SCO employee who worked on all kernels including Monterey prior to Caldera.

Re:The article is flawed.

[0xB00F]

As an example, the author takes issue with the SCO's claim that IBM must have stolen SCO trade secrets in order to improve Linux by saying "OK, then, diff the code."

Perhaps. But if I were you, do what I did: download the kernel changelogs for 2.4 (and if you like 2.2) and grep them for ibm.com (i.e. commits from someone at IBM).

For example, I fetch the changelogs from here [ibiblio.org]. And then I ran:

$ grep -il "ibm\\.com" *

in the directory containing the changelogs to get the filenames with commits from an IBM email address. Use a pager with regexp search capability (like 'less') to view the files, in this case the changelogs for 2.4.19 and 2.4.20.

What?!? You're not running linux?!? Shame on you!

As you will see, most of the checkins involve bug fixes for IBM's JFS, some patches for IPV6, and few ones for s390. Gotta love version control, eh?

Suppose part of the validation test set for Monterey consisted of a stress test written by SCO and owned by SCO.

Project Monterey was a plan that never happened. It was a plan to put Unix on IA-64 machines that died during conception. What we have is a lot of white papers on the subject but no written, working code. Of course I could be wrong, and if there was working code it would have probably been written by IBM developers anyway with a "Copyright (c) 2000 IBM Corp." near the top of the sources.

Let us further suppose that code was used in the Linux development work, and found a key set of bugs. (Don't tell me it isn't possible that it would have been -- developers tend to think of tools as just tools, and forget that they may be encumbered.)

Probably, but one of the accusations SCO makes is that IBM allegedly handed out Unix code owned by SCO to Linux kernel hackers. And that Linux would not have advanced if IBM had not handed out said code. But so far, all code commits from IBM appear to be mostly patches to existing code. What's more SCO accuses IBM of handing out code from SCO Unix to improve Linux's SMP capabilities. However, Linux's SMP support was one of the primary reasons why IBM adopted Linux in the first place (for proof, see my earlier post in this thread). Ergo, by adopting an Open, Freely Available variant of Unix with SMP support would lessen their development efforts.

What I find rather interesting is Caldera's Logo on the IA-64 Linux page [linuxia64.org]. And it lists them as one of the players in this project. And even more interesting is the missing links on SCO's website pointing to details of the Itanium Netfarm they have presumably made available to IA-64 Linux developers.

- casts polymorph other spell on grue... 0xB00F!

UnixWare to Linux Porting Guide

[PiotrK]

Please help others moving from SCO to Linux and post links to documentation like this:

UnixWare to Linux Porting Guide (development tools and the API)
http://people.redhat.com/drepper/ [redhat.com]
http://people.redhat.com/drepper/sco-porting.pdf [redhat.com]

SCO mentions MONTEREY explicitly!!!

[Anonymous Coward]

I would agree with you if SCO had even mentioned their recent work with IBM, but they didn't (probably because the IBM lawyers wrote a contract that is unassailable). The entire case stems around the original UNIX source code that SCO acquired from Novell. As such it is a ridiculously specious case. Don't believe me, go read SCO's filing.

From THE COMPLAINT ITSELF [sco.com]:

Project Monterey

50. As SCO was poised and ready to expand its market and market share for UnixWare targeted to high-performance enterprise customers, IBM approached SCO to jointly develop a new 64-bit UNIX-based operating system for Intel-based processing platforms. This joint development effort was widely known as Project Monterey.

51. Prior to this time, IBM had not developed any expertise to run UNIX on an Intel chip and instead was confined to its Power PC chip.

52. In furtherance of Project Monterey, SCO expended substantial amounts of money and dedicated a significant portion of SCO's development team to completion of the project.

53. Specifically, plaintiff and plaintiff's predecessor provided IBM engineers with valuable information and trade secrets with respect to architecture, schematics, and design of UnixWare and the UNIX Software Code for Intel-based processors.

54. By about May 2001, all technical aspects of Project Monterey had been substantially completed. The only remaining tasks of Project Monterey involved marketing and branding tasks to be performed substantially by IBM.

55. On or about May 2001, IBM notified plaintiff that it refused to proceed with Project Monterey, and that IBM considered Project Monterey to be "dead." In fact, in violation of its obligations to SCO, IBM chose to use and appropriate for its own business the proprietary information obtained from SCO.

ESR pretty much...

[talks_to_birds]

kicks SCO in the nuts.

"...The author [ESR] personally ran two of these -- Microport and Yggdrasil -- and a third not listed, which was the Dell own-brand port.

SCO competed directly against these ports, and cannot fail to have been aware of their existence. SCO's claim to have been unique in supporting Unix for PCs is therefore not merely false, it is a deliberate and egregious lie."

Everyone who thinks they know anything about this issue but who is under -- say -- forty years of age owes it to themselves to read ESR's brief.

My first experience with UNIX was in '86 -- using SCO Xenix -- on an NEC 80386 in an auto parts store.

SCO as an "enterprise computing environment" UNIX?

Yeah, right...

t_t_b

ESR kicks...

[talks_to_birds]

...SCO in the nuts again:

"...When OSDL spun up, IBM gained a choice: work with one small partner that lacks demonstrated expertise or focus on the enterprise market, or join a large consortium of industry heavyweights with man-centuries of relevant experience.

That seems just about enough time for an astute IBM strategist to conclude that SCO was the less likely alternative to sustain a serious Linux development and support effort over time. To any technical person, SCO's own failure to develop expertise beyond its small-business roots seems a more plausible explanation for the switch to OSDL than some nefarious anti-SCO conspiracy by top IBM executives..."

God, I love ESR...

t_t_b

ESR goes for the jugular:

[talks_to_birds]

"...If Darl McBride and complainants did not know at the time of the complaint that their own company had played a lead role in the very development they accuse IBM of having unfairly and unlawfully pursued, they are incompetent. If they did know, their complaint appears to verge closely upon perjury..."

You go, ESR...

t_t_b

Re:JFS was *ported* to OS/2, it didn't come from O

[djmutex]

JFS version 1 was originally on AIX. The version 2 of JFS that appeared in OS/2 Warp Server for e-business was pretty much a rewrite, as far as I know (which at least explains the plethora of initial bugs), and later ported back to AIX. It was _this_ OS/2 JFS that got open-sourced and ported to Linux.