| SCO's lawsuit against IBM |
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by Greg Lehey
Note: The opinions expressed here are my own and have no relationship with the opinions or official viewpoints of any organization with which I am associated
I have stopped working on this document. It reflects the situation roughly in October 2003. Since then, I have become convinced that SCO's claims are bogus, and that they are acting either dishonestly or with a staggering lack of understanding. There's nothing I can do to address either of these issues.
On 9 March 2003, Caldera Systems Inc., trading as SCO, sued IBM for giving away trade secrets. Since then, things have developed at a startling pace. This page gives an overview; follow the links for more details. I also have a page of other links about the affair. I'm also trying to keep this document as up-to-date as possible, so it will continue to change. See the list of significant changes for more details.
SCO's first step was to file a complaint against IBM. It must be one of the most stupid documents I've ever seen. I have prepared a more detailed analysis of the complaint.
I have a number of thoughts about the matter, but it's a complicated issue, and I haven't got round to tidying it up. In the meantime, I find that Eric Raymond's position paper is quite a good start in understanding SCO's nonsense.
SCO has adapted Éric Lévénez's UNIX family tree to show the derivation of SCO UNIX (System V.3.2 based), UnixWare (System V.4 based) and Linux, which it claims has a ``heritage'' from the Seventh Edition of UNIX. So far, I haven't seen any evidence that they are going to do anything about it, but I also suspect that their lawyers don't realise that on 24 January 2002, Caldera, at the time the owners of the Seventh Edition source code, released it and all earlier versions, also 32V and System III for 16 bit platforms, under a BSD-style license. Since then, of course, Caldera changed its name to SCO.
On 12 May 2003, SCO sent a letter to their Linux customers. Amongst other things, it states:
We believe that Linux is, in material part, an unauthorized derivative of UNIX.
It has certainly taken them a long time to come to that conclusion, and they offer no evidence. It appears that their intention is to charge royalties for every copy of Linux sold.
On Tuesday, 27 May 2003, I spoke to Kieran O'Shaughnessy, managing director of SCO Australia, who told me some additional details. In summary, he claims that there are two separate issues: the complaint against IBM for breach of contract, and the discovery of UNIX System V code in Linux, apparently put there by somebody else.
As you can see from the message of 24 January 2002, SCO has changed its attitude to free software completely in the last 15 months. Why?
Obviously there are commercial reasons here. SCO is in trouble. In mid-2002 they changed their name back to SCO. A high-ranking SCO employee told me at the time that the reasons for this were that they were still making more money out of UNIX than they were out of Linux. This seems reasonable, but it's an open secret that SCO is not making much money out of UNIX. This lawsuit could help them in a number of ways:
Another reason is to bolster the price of SCO stock. This seems to be happening ("working"?). When I originally wrote this summary, SCO stock was trading at $4.55. On 3 March 2003, the day before they announced the suit, it closed at $1.83, a relatively good price at the time: two weeks before that it was as low as $1.09. Since then it has been as high as $12. If the stockholders are looking for a way to get out before the crash, this might help.
Then there's the conspiracy theory: Microsoft is funding them to break up Linux. I have seen claims that Microsoft is the second-largest shareholder of SCO, so it's not completely impossible, but I'd like to see some good evidence before coming to that conclusion.
Update 18 May 2003: The conspiracy theory has gained new momentum with an article in the Wall Street Journal in which the headline reads:
Microsoft agreed to buy rights to Unix technology from SCO, a boost to SCO's efforts to get royalties for a predecessor to Linux.
I'm not a subscriber to the Wall Street Journal, so I can't read the article, but I'm told that the article considers SCO's UNIX patents and source code to be valuable. I doubt that this is the main reason. It's fairly clear that the most significant issue here is Linux, and this is in fact quite a clever way to attack Linux. It's a good thing that the BSDs have already settled their UNIX licensing issues.
That's one question that's easy to answer: No, in no way whatsoever. If it were, they should at least have made specific accusations as to what IBM is supposed to have done. Having worked on Linux for IBM, I can state categorically that the separation between AIX and Linux is complete. Nearly all of the people working on the Linux kernel have no access to AIX source code. It's theoretically possible that some people do have such access, though I know of nobody, but IBM has guidelines for that case, just to be on the safe side: don't read AIX code and write Linux code in the same place. Read the code, go elsewhere and write. Even this, though, would hardly be useful: AIX is UNIX, Linux is Linux. The kernels have such completely different structures that any code import would be a waste of time: it's easier to write it from scratch.
SCO's talk about SMP scalability is nonsense. They don't have any useful technology in that area. Linux scaled better than UNIX System V long before IBM came on the scene. It's true that IBM is doing a lot of work in that area, but it's based on the PowerPC architecture, and SCO's version of System V doesn't support that platform. So what use would the code be, even if it were a drop-in replacement on the i386 platform?
As these things unfolded, a number of people reacted in public, including AUUG (also reported in The Age). The following day, Novell reacted with an even more interesting development. It seems that SCO doesn't own the copyrights in the first place. Things are still continuing, but it'll be fun watching. It's interesting to see how the SCO stock price reacted.
Since then, SCO claims to have found an amendment which suggests they have more rights to UNIX than the Novell letter claims, but we haven't seen any additional statement from Novell. On the other hand, the Open Group has reiterated its ownership of the UNIX trade mark.
In late May 2003, a German user group instituted legal proceedings against SCO for anti-competitive behaviour. This resulted in an injunction which caused SCO (belatedly) to remove all links to their customer letter above. There has also been action in Poland.
In early June 2003, SCO showed code samples to non-programmers who confirmed that there were large passages, in one case 80 lines, of identical code, including comments. Here's a discussion of this issue.
I'm not the only person writing articles on this subject, of course. A lot of influential writers have had their say. I've had my attention drawn to an article by Robert Cringely in which he expresses similar viewpoints to my own. A couple are worth discussing, though.
On 16 June 2003, SCO announced that it had terminated IBM's UNIX license and thus its right to use and sell AIX software. I've gone into more detail on the subject.
On the same day as the previous item, Byte magazine published an interview with Chris Sontag, SCO's Senior Vice President. It's full of mistakes, which of course could have been done by the reporter, but beyond that it seems to indicate a complete lack of understanding. Here's my take on it.
SCO have now announced that they're licensing UnixWare to Linux users:
“Since the year 2001 commercial Linux customers have been purchasing and receiving software that includes misappropriated UNIX software owned by SCO,” said Chris Sontag, senior vice president and general manager, SCOsource intellectual property division, The SCO Group. “While using pirated software is copyright infringement, our first choice in helping Linux customers is to give them an option that will not disrupt their IT infrastructures. We intend to provide them with choices to help them run Linux in a legal and fully-paid for way.”
Well, first we need to know whether this is true or not. They can't just come out and make claims like that and expect people to pay. If it proves to be true, we still need to know:
We don't need to know why people can't remove this code if they don't want it: despite SCO's claims, they can. SCO's insistence on leaving the code in there makes their motives more suspect than ever, and begs the question if they didn't put the code in there themselves for exactly this reason. It would also be interesting to see if this activity isn't illegal: you can't force people to buy your products, but this is what they're claiming to do.
Hundreds of files of misappropriated UNIX source code and derivative UNIX code have been contributed to Linux in a variety of areas, including multi-processing capabilities. The Linux 2.2.x kernel was able to scale to 2-4 processors. With Linux 2.4.x and the 2.5.x development kernel, Linux now scales to 32 and 64 processors through the addition of advanced Symmetrical Multi-Processing (SMP) capabilities taken from UNIX System V and derivative works, in violation of SCO's contract agreements and copyrights.
This is so stupid that it's barely worth responding to. If SCO really wants to make this claim, they should show the code for comparison. It might also be interesting to see whether UnixWare even comes close to Linux's SMP scalability.
Finally somebody has retaliated! Red Hat Linux has filed a complaint about SCO. About time, too.
Things are happening thick and fast. Finally Big Blue has filed a countersuit against SCO. Here's a transcript. It's interesting to note that they're accusing them of violation of the GPL, and they have terminated SCO's rights to redistribute IBM's software because of the alleged breaches. That's an amusing one. I've never been too happy with putting the GPL to the test in court. I prefer to look upon it as a gentlemen's agreement, and I suspect that stringent examination in court may damage it. But IBM's in favour of the GPL, so it's unlikely to have taken these steps unless it was pretty sure that it would come through. Groklaw, which appears to be somebody's pseudonym, has done quite an interesting analysis. I've also done my own analysis of IBM's countersuit.
On 20 August 2003, SCO showed code purported to come from UNIX System V at the SCO Forum in Las Vegas. It seemed to convince the stockholders, but in fact the code in question is not UNIX System V code, though there's some indication that the first example had come by way of System V. The second example was unmodified BSD code. SCO are allowed to use that code, but they must maintain the copyright notice. I can't believe that the lawyers would have missed that copyright notice when comparing the code, so this suggests that SCO has abused the BSD license. Here are more details.
In November 2003, many people, myself included, got bored with the SCO threats. That's not good for SCO, of course. My prediction has been for some time that the suit would drag on interminably, that SCO's stock price would gradually drop as the fools who believed them become disillusioned, and that ultimately SCO would disappear.
Looking at what's happened in the last couple of months, it looks like SCO's actions have been designed to bolster their stock price: there was a sharp rise after the disclosures at the SCO Forum in Las Vegas, another in October. Now it's gradually dropping again. It may look good compared to the way it was in February, but on 14 November it was under $14 all day, down over 30% in a month. After the teleconference where McBride mentioned suing BSD, the price did increase slightly, but not very much. This suggests that either people are less likely to buy into this “let's sue everybody in sight” approach, or (more likely) that they recognize that the BSDs have nothing to give.
What about suing Apple Computer? MacOS X uses a lot of BSD code. That would have made more sense, and would have had a better effect on the stock price. I don't know why they didn't.
On 18 November, Darl McBride stated in a news conference that he would be in planning litigation against the BSDs next year. Does anybody believe that? If they really did pursue litigation, it would be over before it started: the settlement of 1994 has been overtaken by a unilateral decision of SCO (then called Caldera) in January 2002 to release all the code under an open source license. See the mail message from Dion Johnson and the letter from Bill Broderick for more details. Yes, these are on my web site, not SCO's (I was one of the recipients of the original mail message), but they're authentic. The content would be substantiated in any legal proceedings.
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