SCO v. IBM Linux lawsuit
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On March 7, 2003, the SCO Group (formerly known as Caldera Systems) filed a $1 billion lawsuit in the US against IBM for allegedly "devaluing" its version of the UNIX operating system. The amount of alleged damages was later increased to $3 billion. SCO claimed that IBM had, without authorization, contributed SCO's intellectual property to the codebase of the open source, Unix-like Linux operating system. In May 2003 SCO Group sent letters to members of the Fortune 1000 and Global 500 companies warning them of the possibility of liability if they use Linux. Because of this, the stock price of SCO (Nasdaq stock symbol SCOX) has skyrocketed.
Since then, the claims and counter-claims made by both sides have escalated, with both IBM and Linux distributor Red Hat starting legal action against SCO, and SCO making threatening noises toward Linux users who do not take out SCO UNIX licences.
On September 30, Judge Kimball granted the SCO Group's request for a delay until February 4, 2004, "to file any amended pleadings or add parties to this action". This pushes the start of the actual lawsuit back until 2005.
SCO has changed its claims repeatedly as the affair has progressed. The original lawsuit alleges breach of contract against IBM; then claims of copyright infringement emerged. SCO has also both claimed and denied that the alleged copyright violations involved the Linux kernel.
It has been reported that SCO has variously threatened to sue Linux users and even Linus Torvalds, head of the Linux programming project, himself. Computerworld reported that SCO's Chris Sontag said, regarding the alleged infringements:
SCO's claims
Until their annual reseller's convention in August of 2003, SCO refused to allow access to the samples of code that contained the alleged copyright violations except under a non-disclosure agreement. At the convention, they revealed two short sections of code they alleged were copyright violations, and were later reprinted on the Heise website, a German computer magazine publisher.
On May 30, SCO Group's CEO Darl McBride was quoted as saying that the Linux kernel contained "hundreds of lines" of code from SCO's version of UNIX, and that SCO would reveal the code to other companies under NDA in July. [1] To put this into context, David Wheeler's SLOCCount estimates the size of the Linux 2.4.2 kernel as 2,440,919 source lines of code out of over 30 million physical source lines of code for a typical GNU/Linux distribution. Therefore, as per SCO's own estimate, the allegedly infringing code would make up about 0.001% of the total code of a typical GNU/Linux installation. [1]
SCO's major claims have now been reported as relating to the following components of the Linux kernel:
- symmetric multiprocessing (SMP),
- non-uniform memory access (NUMA) multiprocessing,
- the read-copy-update (RCU) locking strategy,
- and IBM's JFS journaling file system
Free software community reaction
The lawsuit caused outrage in the free software and open source communities, who consider SCO's claims to be without merit. Open source advocates' arguments include:
- that the Linux operating system was unlikely to contain UNIX code, as it had been written from scratch by hundreds of collaborators, with a well-documented provenance and revision history that was entirely in the public view (Indeed the very name of the OS is a disclaimer against this: GNU which stands for GNU is Not Unix);
- that it made no technical sense to incorporate SCO UNIX code in Linux, as Linux had the technical features that are claimed to have been appropriated already implemented before SCO UNIX had them;
- that even if Linux and SCO UNIX had some code in common, this did not necessarily mean that this code was copied to Linux from SCO UNIX, rather than vice versa or perhaps the common pieces of code had been legitimately copied from another open source operating system, a BSD-derived one for example;
- and furthermore, that if such reverse copying from Linux itself had occured, that the distribution of SCO UNIX binaries containing GPL'd contributions may therefore require the entire SCO UNIX code base to be released under GPL;
- that even if Linux did contain copied SCO UNIX code, the UNIX source code had already been made widely available without a non-disclosure agreement, and therefore had no trade secret status;
- that even if Linux did contain some UNIX code, the SCO Group had lost any right to sue IBM for trade secret or other intellectual property infringement by distributing Linux itself (their Caldera distribution) under the GNU General Public License (GPL), both before and after their announcement;
- and finally, that even if SCO were to have a valid claim against IBM, their distribution of Linux under the GPL precludes them from pursuing any other user of Linux.
On May 30, Linus Torvalds was quoted by IDG.net as saying, regarding the case:
- "Quite frankly, I found it mostly interesting in a Jerry Springer kind of way. White trash battling it out in public, throwing chairs at each other. SCO crying about IBM's other women. ... Fairly entertaining."
- "I allege that SCO is full of it, and that the Linux process is already the most transparent process in the whole industry. Let's face it, nobody else even comes close to being as good at showing the evolution and source of every single line of code out there."
On June 25, Eben Moglen, the counsel for the Free Software Foundation, released a fuller statement regarding the SCO lawsuit. In this statement, he reiterates many of the points made above, and states that:
- "As to its trade secret claims, which are the only claims actually made in the lawsuit against IBM, there remains the simple fact that SCO has for years distributed copies of the kernel, Linux, as part of GNU/Linux free software systems. [...] There is simply no legal basis on which SCO can claim trade secret liability in others for material it widely and commercially published itself under a license that specifically permitted unrestricted copying and distribution."
Within a few months of the filing of the lawsuit, Eben Moglen, the Free Software Foundation's legal counsel, stated that SCO's suit should not concern Linux users other than IBM. In an interview with internetnews.com, he was reported as saying:
The GPL issue
Apparently noticing the incongruity of their selling a Linux distribution while suing IBM for stealing their intellectual property and giving it to the developers of that operating system, the SCO Group then announced on May 14 that they would no longer distribute Linux. According to their press release, "SCO will continue to support existing SCO Linux and Caldera OpenLinux customers and hold them harmless from any SCO intellectual property issues regarding SCO Linux and Caldera OpenLinux products."
However, as of Saturday, September 13, 2003, SCO Group is still distributing the Linux kernel under the terms of the GNU GPL via their FTP server. ftp://ftp.sco.com/pub/updates/OpenLinux/3.1.1/Server/CSSA-2003-020.0/SRPMS/linux-2.4.13-21S.src.rpm [1]
Novell entered the controversy by publishing on May 28 a press release concerning the SCO Group's ownership of UNIX. "To Novell's knowledge, the 1995 agreement governing SCO's purchase of UNIX from Novell does not convey to SCO the associated copyrights," a letter to the SCO Group's CEO Darl McBride said in part. "We believe it unlikely that SCO can demonstrate that it has any ownership interest whatsoever in those copyrights. Apparently you share this view, since over the last few months you have repeatedly asked Novell to transfer the copyrights to SCO, requests that Novell has rejected."
SCO later claimed to have discovered an amendment to their contract with Novell transfering partial ownership to SCO. Novell stated that the amendment "appears to bear a valid Novell signature, and the language, though convoluted, seems to support SCO's claim that ownership of some copyrights for Unix did transfer to SCO"; Novell also said that it could not find its own copy of the amendment.
A number of Linux supporters have characterized SCO's actions as an attempt to create fear, uncertainty and doubt about Linux. Many believe that SCO's aim is to be bought out by IBM. Others have pointed to Microsoft's subsequent licensing of the SCO source code as a possible quid pro quo for SCO's action.
Univention GmbH, a Linux integrator, reported on May 30, 2003 it was granted an injunction by a Bremen court under German competition law that prohibits the SCO Group's German division from saying that Linux contains illegally obtained SCO intellectual property. If the SCO Group continues to express this position, they would have to pay a fine of 250,000 euros. A similar injunction was sought around the same time in Poland.
On July 23, Open Source Victoria announced that they had filed a complaint with the Australian Competition and Consumer Commission, "asking the ACCC to investigate the SCO Group's activities in light of their unsubstantiated claims and their extortive legal threats for money against possibly hundreds of thousands of Australians."
EWeek has reported allegations that SCO may have copied parts of the Linux kernel into SCO UNIX as part of its Linux Kernel Personality feature (see the EWeek report below). SCO has denied these allegations. Some open-source advocates have suggested that, if true, this may effectively have obligated SCO to release SCO UNIX source under the terms of the GPL to customers who have received SCO UNIX binary distributions.
Reuters reported that the SCO Group intended to revoke IBM's licence to use UNIX code in their AIX operating system on Friday, June 13 if no resolution is reached before then. IBM responded that they believe that SCO has no power to do so, as their license is "irrevocable". On the following Monday, June 16, CNET News.com reported that SCO had announced it had terminated IBM's licence. IBM continues to distribute and support AIX, and the SCO Group now states that they will be seeking an injunction to force IBM not only to stop selling and supporting AIX, but to return to the SCO Group or destroy all copies of the AIX operating system.
Also on June 15, postings on Slashdot and The Inquirer reported claims that:
As of June 17, CNET News.com reported that SCO has increased its claims of damage to $3 billion, and has stated that the read-copy-update code in the Linux kernel is an example of code that infringes its rights. This technique is widely believed to have been developed at Sequent Computer Systems, who were then bought by IBM, who have been reported as holding several patents on this technique.
On June 23, SCO sent out a letter announcing that it would not be suing its own Linux customers. [1] In the letter, it states:
On July 21, 2003, SCO announced that it intends to sell binary-only licences to use the free Linux operating system which will remove the threat of litigation from licence-holders. Linux advocates reacted by stating that SCO has no basis for this action, and that doing this may cause SCO to forfeit their rights under the GNU GPL to distribute Linux or Linux-derived code in any form.
Many commentators took the view that SCO had no legal basis for this, referring to wording in the GNU GPL that appears to explicitly prevent companies from doing this.
On July 28, it was reported that IBM was briefing its salespeople that SCO's distribution of Linux under the GPL appeared to undermine SCO's case.
On August 4, 2003, it was reported that Red Hat has filed a legal action against SCO ([1]). According to the filing, Red Hat has reqested that the court make:
The letters to Red Hat also hint at possible legal retaliations against Red Hat, saying:
One day later, on August 5 2003, SCO's Darl McBride announced the company's final licensing fees requested from end users for the use of Linux; a single-CPU server license will cost US $699 until October 15, 2003, and $1,399 afterward, while licenses for desktop and embedded systems will currently cost US $199 and US $32, respectively. Prices for server systems with more than one CPU range from US $1,149 for two CPUs to US $2,499 for four CPUs and US $4,999 for eight CPUs, with each additional CPU being priced at US $749. All of these prices, including the ones for desktop and embedded systems, are scheduled to be increased on October 15, 2003.
On August 7, IBM filed their counterclaims against SCO. They make 10 counterclaims, including:
Some commentators have pointed out that if SCO manages to invalidate the GPL, they are highly likely to be caught by this counterclaim, as it is of the same form as their claim against IBM.
Novell enters the controversy
Fear, uncertainty and doubt
Allegations of reverse copying
IBM's AIX licence
Scheduler code claims
Increased damages claims, and read-copy-update claims
SCO announces that it will not sue its own customers
Some observers have stated that in doing so, SCO may have granted the same rights to other Linux users who obtained a copy of Linux from an SCO partner under the terms of the GPL. Others have stated that to "hold someone harmless" is different from a grant of rights, and that SCO has not made a grant of rights in writing this letter. Others believe that this letter is moot, as a grant of rights was made by SCO by the act of releasing the software under the GPL in the first place. This action may also signal the grounds for a GPL violation suit against SCO as it is seeking different terms of distribution of works for its own customers than other recipients of the same work.SCO to offer a "Linux licensing program"?
IBM points out SCO's GPL licensing of code
Red Hat legal action and SCO's response
SCO replied with both a press release and two letters to Red Hat on the same day ([1]); their claims are reiterated in the press release ("Linux includes source code that is a verbatim copy of UNIX and carries with it no warranty or indemnification. SCO's claims are true and we look forward to proving them in court."), and the allegations made by Red Hat are denied ("SCO has not been trying to spread fear, uncertainty and doubt to end users.")
The Linux distributor SuSE, a member of the UnitedLinux consortium together with SCO Group, later expressed support for Red Hat's initiative, stating in a press release:SCO announces licensing fees
IBM counterclaims against SCO
Novell and SCO's claims to have terminated IBM's AIX license
Did the "old" SCO donate source to Linux?
Examples of controversial code revealed
New IBM counterclaims
On September 26, 2003 IBM filed new counterclaims against SCO Group involving alleged copyright infringement by SCO of GPL-licensed IBM code in the Linux kernel.SCO acts against SGI
On October 1, 2003 the SCO Group announced that they would be revoking SGI's UNIX license for code it contributed to the kernel Linux. The source of this code was identified after it was shown at a reseller show.External links
Press coverage
Documents
Commentaries, Opinions etc.
Interviews
Humour
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