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Analysis of SCO vs. IBM 282

icantblvitsnotbutter writes "An excellent -- and clear! -- article over at 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.
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Analysis of SCO vs. IBM

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  • If only.... (Score:4, Interesting)

    by Anonymous Coward on Friday March 14, 2003 @11:21AM (#5511511)
    IBM would countersue, based upon restraint of trade, for $2B.

    I think they'd have a pretty good chance of ending up owning all of SCO.

    Not that it's worth much.

  • Re:In ESR's take... (Score:3, Interesting)

    by DJPenguin ( 17736 ) on Friday March 14, 2003 @11:33AM (#5511601)
    I really hope Linus and Alan don't go the way of ESR and/or RMS - two of the craziest guys around IMO :)
  • by Picass0 ( 147474 ) on Friday March 14, 2003 @11:41AM (#5511666) Homepage Journal
    I'm reminded of a few(!) years ago when I was reading about development on the Atari 8-bit computers. A columnist for Analog magazine wrote about how he could not divulge certain information about memory mapping of the 400/800 computers because of his Non-Discolsure Agreement - BUT - that if he found out the same information from a third party he could then treat said information as public domain, and then was not bound by the NDA.

    I would be interested in knowing if the knowledge shared here had slipped into the public domain, because if so then NDAs do not apply.

  • SCO's case (Score:5, Interesting)

    by Alomex ( 148003 ) on Friday March 14, 2003 @11:41AM (#5511672) Homepage

    While I have no idea if SCO has a case or not, I see that many here assume IBM had nothing to do with making Linux enterprise stable, and scoff at SCO's claim.

    Yet, if you take the time to google the web you'll find that IBM dedicated an entire internal group to Linux and hired several external companies during 1999-2001 with the sole purpose of making Linux entreprise strength (even Linus has said so).

    Now, to be clear, this does not yet prove that any illegal transfer of technology took place (and I doubt SCO will be able to prove it, IMHO they are fishing hoping to find the smoking gun during discovery), but it does verify one of the main three claims from SCO.

  • by dentar ( 6540 ) on Friday March 14, 2003 @11:42AM (#5511673) Homepage Journal
    These folks have pretty much turned on us. I spent a great deal of effort learning UNIX, getting my SCO CUSA, ACE, and Master ACE. SCO ruined that by no longer being competitive, not keeping up with technology, not marketing their products well, and mistreating their reseller channel. They got their asses kicked by a college student in Finland because they got lazy and stupid. It serves them right. I am now questioning whether or not I should have tried to become a dealer of their wares when I struck out on my own.

    I'm finished when 'em. I'll support their products while my clients still have them, but as soon as the first opportunity to upgrade comes along, we're migrating!

    Here is an excerpt about who the money grabbers are, and when they acquired for .001 per share:

    Here is my new policy: m
  • by bert33 ( 655799 ) on Friday March 14, 2003 @11:46AM (#5511704)
    Hoe could they release a document with so many factual and grammatical errors? I would have thought the lawyers would at least do a little proofreading and fact checking.
    Regardless, since UNIX was licensed to universities to study couldn't the concepts SCO claims were "stolen" by IBM simply have been studied by the Linux developers when they were in school?
  • by Tony-A ( 29931 ) on Friday March 14, 2003 @11:55AM (#5511792)
    Looks like that ownership may be a bit tainted. (emphasis added)

    The suit was settled after the University threatened to countersue over license violations by AT&T and USL. It seems that from as far back as before 1985, the historical Bell Labs codebase had been incorporating large amounts of software from the BSD sources. The University's cause of action lay in the fact that AT&T, USL and Novell had routinely violated the terms of the BSD license by removing license attributions and copyrights.

    The exact terms of final settlement, and much of the judicial record, were sealed at Novell's insistence.

  • Re:SCO's case (Score:3, Interesting)

    by jbolden ( 176878 ) on Friday March 14, 2003 @12:09PM (#5511929) Homepage
    Absolutely they did. IBM has done a great deal of stuff to make 2.6 a much better kernel. The problem is those aren't the features that SCO can claim came from SCO, unless they want to claim they were so secret they didn't share them with their own development staff -- i.e. they aren't part of SCO either. The features they can claim are the ones that were in Linux prior to IBM's involvement.
  • that's not the issue (Score:3, Interesting)

    by Ender Ryan ( 79406 ) on Friday March 14, 2003 @12:20PM (#5512020) Journal
    We all know that IBM has contributed to Linux development. However, IBM's contributions to Linux pale, or become transparent to be more accurate, in comparison to the dedicated hackers from all over the world who contribute to Linux.

    Furthermore, Linux was already far more advanced and "enterprise ready" before IBM even touched it than SCO gives it credit for NOW.

    I was using Linux on SMP machines before IBM ever came on the scene. IBM's LVM was turned down. IBM's JFS is probably the least used JFS in Linux, Reiser and Ext3 being the most predominant.

  • by jms ( 11418 ) on Friday March 14, 2003 @12:21PM (#5512025)
    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.

    Not to mention that IBM released AIX/PS2 back in the early 1990s -- a version of AIX that ran on 80386 based PS/2 hardware.

    It sucked to the extent that the hardware it ran on sucked. A big, bloated Unix kernel running on an 80386 with a maximum of 16 megs of memory and a 60 meg ESDI hard drive was pretty close to a non-starter.

  • by Anonymous Coward on Friday March 14, 2003 @12:22PM (#5512029)

    This is not about UNIX!!! This is about PROJECT MONTEREY!!!

    Monterey was a real, live, flesh and blood endeavor in which SCO and IBM partnered to write a new, 64-bit, proprietary Über-Unix on Intel hardware. SCO committed real, live, flesh and blood engineers to the project, and real, honest to goodness, cold, hard cash. IBM walked away from the table. The question is: How much SCO intellectual property did IBM walk away with, and how much of it found its way to IBM's Linux projects? If, through discovery, SCO can prove that a substantial number of IBM's Project Monterey engineers were re-assigned to IBM Linux projects, then SCO will have a reasonably solid foundation on which to proceed with the case.

    This is no different than Intergraph's highly successful court cases against Intel, in which Intergraph proved that Intel had stolen substantial amounts of Intergraph intellectual property.

    Google on Project Monterey SCO IBM []

    Google on Intergraph Intel []

  • by cenonce ( 597067 ) <anthony_t@ma[ ]om ['c.c' in gap]> on Friday March 14, 2003 @12:37PM (#5512179)

    I'd really be interested to see what kind of damages SCO can prove. They may end up racking up millions in dollar of legal fees for a very small reward, if any.

    Even the IBM/AT&T agreement is valid, I'd be surprised if IBM wasn't smart enough to isolate engineers with knowledge of SCO Unix source code from engineers assisting in the Linux development. I mean, c'mon, IBM has been in the computer industry since ENIAC and has been in business almost twice that long! Does anybody really believe IBM can't write a non-disclosure agreement and isolate its employees? SCO makes it sound like the 7,000 IBM engineers working on Linux are the only engineers IBM has, thus, IBM must have violated trade secrets! PLEASE! IBM employs hundreds of thousand of people and probably 10 times the number of engineers they have working on Linux.

    Just because IBM has thrown some effort into Linux, doesn't mean they are tossing AIX out the window. It is probably a wait and see... if Linux really catches on, we can move AIX enterprises over and add Linux enterprises with the benefits of the GPL. IBM is now a service provider, and the reality is, the only way you make money with Linux is providing service.

    It'll be interesting to see how much the lawyers end up making out of all this.


  • by 0xB00F ( 655017 ) on Friday March 14, 2003 @12:38PM (#5512205) Homepage Journal

    One of the major gripes of SCO is that Linux would not have been able to have SMP support if it weren't for IBM lifting SCO Unix code and handing it out for the kernel developers.

    Perhaps they should read this article [] at IBM DeveloperWorks. This page pretty much explains why IBM decided to go the way of the fat penguin.

    It should be worth pointing out this quote from the article:

    One of the areas where Linux has an advantage on the FreeBSD community is in SMP, or multiprocessor support. Linux has supported SMP for about five years while FreeBSD has supported it for about two years. As a result, the Linux's support for SMP is considerably more mature than FreeBSD. Due to the open source nature of both systems, this will not be the case for long. FreeBSD developers have the opportunity to learn from the mistakes of the Linux developers.
    Linux has had support for SMP waaaaaay long before IBM adopted it and apparently this was one of their reasons for adopting Linux. I also read in a magazine once (I think it was Time or Newsweek c.a. 1998 IIRC but someone please correct the date :-D) that in one of the numerous Linux shows, one of the participants was able to make Linux run on a machine with 4 Xeon processors.

    Plus there is also the fact that a year before IBM adopted Linux, they (among others)made large hardware available to Linux developers for testing and benchmarks [].

    0xB00F disappears in a puff of smoke...

  • by walt-sjc ( 145127 ) on Friday March 14, 2003 @12:53PM (#5512377)
    As for Sun's Intel work, they created the "Corporate I386" WAY back in the 80's, but due to the fact that it blew away (out performed and less expensive) machines built on Scott's pet chip (sparc) he killed the project. Full circle, Scott. Full circle.

    Note: my wife was on that project team. They later went on to create the Sparc 5. Scott did a lot of killing of good projects and is Seriously holding back the creativity of the engineers at Sun. There are some Really good people there.
  • by YU Nicks NE Way ( 129084 ) on Friday March 14, 2003 @01:07PM (#5512498)
    The author of the LinuxWorld piece is doing advocacy, not analysis. SCO's case is far more subtle than most in the Linux community seem to think.

    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." It's true that such a diff would provide prima facie proof of violation, but there are plenty of violations which would not require any code to leak at all.

    Suppose part of the validation test set for Monterey consisted of a stress test written by SCO and owned by SCO. That code wouldn't ever be in the final product, and it would certainly be SCO's intellectual property, shared with IBM in order to make Monterey work better. 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.) At that point, there would been a misappropriation of IP.

    (Disclaimer: I have not ever seen any of the code covered by any of these agreements, nor have I ever seen any tests in the Monterey test suite, nor had any contact with any of the principals in this lawsuit. I'm merely criticizing the LinuxWorld piece; any resemblance between the situation outlined here and reality would be purely coincidental.)
  • by An Onerous Coward ( 222037 ) on Friday March 14, 2003 @01:44PM (#5512824) Homepage
    The first, important point: SCO doesn't own AIX.

    I don't know the details of the "Unix contract" that IBM is said to have with SCO. According to ESR's brief, Unix vendors continued to buy licenses to the original AT&T/Bell Labs code long after that source code ceased to be relevant to the marketplace. If IBM bought such a license, it presumably would have been transmitted to Caldera, then Novell, then SCO.

    He also points out that none of the "Enterprise Scalability Features" such as SMP, NUMA, journaling file systems, etc., are actually present in the original Bell Labs code bought by SCO. This is important, because SCO appears to be claiming intellectual property rights over all the features in all descendants of the original Bell Labs code.

    Finally, the Novell case is strong evidence that there is very little proprietary code in the original UNIX. Again from ESR:
    The key provisions [of the settlement] are, however, described in Twenty Years of Berkeley Unix: From AT&T-Owned to Freely Redistributable, [McKusick99]. Only three files out of eighteen thousand in the distribution were found to be the licit property of Novell and removed. The rest were ruled to be freely redistributable, and continue to form the basis of the open-source BSD distributions today.

  • by Anonymous Coward on Friday March 14, 2003 @01:46PM (#5512854)
    Everyone here ASSumes that Intellecutal Property == Patents, but SCO's complaint is very clear that this is about Trade Secrets and vauge fuzzy know-how.
  • On Point (Score:4, Interesting)

    by bstadil ( 7110 ) on Friday March 14, 2003 @01:55PM (#5512934) Homepage
    The avertment below aimes directly at OpenSource competency, so even though it reads as flag-waving it is on point.

    Avertment 84: "Prior to IBM's involvement, Linux was the software equivalent of a bicycle. UNIX was the software equivalent of a luxury car. To make Linux of necessary quality for use by enterprise customers, it must be re-designed so that Linux also becomes the software equivalent of a luxury car. This re-design is not technologically feasible or even possible at the enterprise level without (1) a high degree of design coordination, (2) access to expensive and sophisticated design and testing equipment; (3) access to UNIX code, methods and concepts; (4) UNIX architectural experience; and (5) a very significant financial investment."

  • by Jason Earl ( 1894 ) on Friday March 14, 2003 @02:21PM (#5513157) Homepage Journal

    Yes Monterey was a real life project, but that's completely irrelevant. Why is that the case? It's quite simple, if SCO had some sort of contractual obligation from Monterey that they could hold over IBM then they almost certainly would have mentioned it in their court filing.

    Read SCO's original filing and you will find absolutely no reference to Monterey and any contracts involving Monterey. SCO's filing is quite explicit in its mention that their claim comes from the fact that they own the original System V UNIX source code (which IBM licenses and includes in AIX).

    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.

  • errors of fact (Score:2, Interesting)

    by neongenesis ( 549334 ) on Friday March 14, 2003 @02:32PM (#5513257)
    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.

    Sales of the OS were FORBIDDEN by the 1956 consent decree that allowed the monopoly telephone company. It was not until the Bell breakup that they it was even legally possible to sell Unix licenses.

Radioactive cats have 18 half-lives.