SCO Falls Downstairs, Hitting Its Head On Every Step

SCO Falls Downstairs, Hitting Its Head On Every Step

By Pamela Jones
Groklaw

May 17, 2003

As you likely have heard, SCO has hit IBM with a lawsuit [ http://www.sco.com/scosource/complaint3.06.03.html ], alleging misappropriation of trade secrets, unfair competition, breach of contract and tortious interference with SCO's business.

Why anyone cares, outside of IBM, is because SCO has now sent letters [ http://apnews.excite.com/article/20030514/D7R1CND00.html ] to commercial users of Linux, warning them that they may be liable for IP infringement, and it looks like it intends to go after RedHat and SUSE as well as IBM. Some have said [ http://news.com.com/2100-1016-991464.html?tag=nl ] that if SCO is successful in its litigation, "it could undermine one of the basic tenets of the open software movement, of which Linux has been the most successful example. Linux is a Unix derivative..."

Pardon my curled lip.

Regarding SCO's claims:

First, Linux , the kernel, is not a "Unix derivative". It was written from scratch.

Second, the Free Software Foundation's software is also all written from scratch, and they have a policy of replacing any contested code, as Gartner's has pointed out [ http://www.sco.com/scosource/gartner_warning.html ]. Inexplicably, SCO has posted this Gartner's report on their web site, evidently not realizing that it points out the simple solution to any IP claims they may have against Linux, or GNU/Linux. Gartner says if you're worried about your code due diligence would include just checking with the Free Software Foundation.

Here is what Richard Stallman [ http://www.mozillaquest.com/Linux03/ScoSource-02_Story05.html#Resources ] said about the SCO claims in a very interesting series of articles on MozillaQuest Magazine, where he offers a simple fix -- just show the code SCO thinks is copied, and it'll be taken out and replaced:

"If any AT&T-copyrighted code was copied into GNU, this occurred despite our continued efforts to prevent such copying. Our intention was to write code from scratch, and we have surely done so 99% of the time or more. If SCO can find code that was copied and is not fair use, they merely have to show it to us. We will take out the AT&T code and replace it."

And here [ http://www.mozillaquest.com/Linux03/ScoSource-02_Story04.html#CommunityResponds_SCO-Caldera_IP_Claims ] is what he said regarding FSF policy for programmers regarding Unix source code:

"We made deliberate efforts to prevent copying of any Unix source code into the GNU system. We have had written recommendations for GNU developers since the 80s, telling them not to even look at Unix source code while writing GNU programs. I don't know whether the developers of Linux, the kernel, have stated such policies, but at least the GNU part of GNU/Linux should be safe."

Folks, GNU stands for "GNU's not Unix".

For that matter, IBM has policies too. While I can't speak to the contract dispute between them and SCO, because all the facts regarding their dealings are not on the table yet, some of IBM's Linux kernel developers were interviewed on Slashdot [ http://interviews.slashdot.org/interviews/02/06/18/1339201.shtml?tid=136 ], and they were specifically asked if they got to see the AIX source code, the code SCO claims was copied. Their answer makes it clear that IBM took steps to prevent it. Here's how they answered:

"First of all, before any of us were allowed to contribute to Linux, we were required to take an 'Open Source Developers' class. This class give us the guidelines we need to participate effectively in the open source community -- both IBM guidelines and lessons learned about open source from others in IBM. We are definitely not allowed to cut and paste proprietary code into any open source projects (or vice versa!)"

What is so weird about the SCO position is it has avoided specifying exactly what code they claim is allegedly copied. They say they'll show it at trial, which is obviously a long way off. Meanwhile, they are causing a lot of PR damage.

The Only Thing We Have to Fear Is...

Hmm... you don't suppose? ...

How weirdly coincidental: Recently Microsoft Chief Executive Steve Ballmer [ http://news.com.com/2100-1016_3-999371.html ] said Linux "customers will never really know who stands behind this product."

Why, that's exactly what SCO is saying it its complaint. It is known that SCO is having money troubles. Could it be... ??

Here's Linus Torvalds' [ http://www.mozillaquest.com/Linux03/ScoSource-05_Story01.html ] reaction: "I don't personally think they have any IP rights on Linux, and I agree, it looks more like a suit over the contract rather than over Linux itself. I don't think they are going to win it (very very weak arguments, since at least from a technical perspective I don't think the IBM involvement has been that significant, and SCO was losing out _long_ before IBM started pushing Linux). However, my personal (maybe overly cynical) suspicion is that even _they_ don't think they'll win the suit, and it may be nothing more than a way to force IBM back into license discussions over UNIX itself.

"So I think that 100-day license revocation thing may actually be the most important part of the whole suit, and that the rest might be just the excuse. If I was SCO and looking at IBM, I'd have long since noticed that IBM has been talking about Linux taking over more and more of their current AIX usage, to potentially eventually replace it altogether.

"So SCO sees IBM largely going away as a licensee in a few years - and while I certainly don't have any knowledge of how much that means for SCO, I would not be surprised if IBM licenses are quite a noticeable part of SCOs receivables. And what would you do? You want to get IBM back to the discussion table over licensing _before_ IBM starts to consider the UNIX licenses for AIX to be no longer worth it."

Here's Bruce Perens [ http://news.com.com/2100-1016_3-999371.html ]: ""He's saying this stuff exists, but he's not willing to reveal it. Well, maybe we'll hear about this in court, but frankly, maybe we won't, because they'll try to seal it all....It sounds like he's trying to FUD Linux in general.... They should just show us what code they have problems with. We'll take a look at it or we'll just replace it. Keeping us in the dark is just silly."

Red Hat [ http://news.com.com/2100-1016_3-999371.html ]: "Given that we have extensive legal resources put forth into making sure we respect the valid intellectual property rights of companies, we are not concerned with the statements that have been made...."

Some more [ http://yro.slashdot.org/yro/03/05/14/2053236.shtml?tid= ] reactions [ http://slashdot.org/articles/03/05/15/1119211.shtml?tid=126&amp;amp;amp;tid=190&amp;amp;amp;tid=185&amp;amp;amp;tid=130&amp;amp;amp;tid=163 ] and some more [ http://www.eweek.com/article2/0,3959,920731,00.asp ] stories.
The community has reacted point by point [ http://lwn.net/Articles/24747/ ] also. The consensus is that, while no one but the parties can yet know the true facts as to the contract dispute between IBM and SCO, as far as the Linux kernel is concerned, there probably isn't anything to fear but fear itself.

And that, in a phrase, may be exactly what this is all about. Good Olde Fud takes another turn around the block.

David Boies has agreed to represent SCO. I am trying to remind myself that our legal system is predicated on lawyers sometimes representing people they don't personally admire, and the system really does depend on someone being willing to take on unpopular clients. I know Boies doesn't use email, or at least he didn't the last time I checked. So maybe he doesn't quite get the tech ... ah, hang it all, there's no way around it: I feel bad he's chosen to represent them, especially after I posted an Ode singing his praises, and I hope he loses.