SCO v. IBM
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 remarks 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's claims
Though the lawsuit itself has been rather consistent in its claims of breach of contract and misappropriation of trade secrets, statements made by SCO in press releases and interviews have changed its claims repeatedly as the affair has progressed; 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:
- "It's very extensive. It is many different sections of code ranging from five to 10 to 15 lines of code in multiple places that are of issue, up to large blocks of code that have been inappropriately copied into Linux in violation of our source-code licensing contract. That's in the kernel itself, so it is significant. It is not a line or two here or there. It was quite a surprise for us."
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 has since upwardly revised this figure to over a million lines of code, however. [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,
- the extended file system (XFS),
- and IBM's JFS journaling file system
Free software/open source 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's 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 occurred, 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."
On July 31, the Open Source Development Labs released a position paper on the ongoing conflict [1], written by the FSF's Eben Moglen.
The GPL issue
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:
- "There is absolute difficulty with this line of argument which ought to make everybody in the world aware that the letters that SCO has put out can be safely put in the wastebasket," ...
- "From the moment that SCO distributed that code under the GNU General Public License, they would have given everybody in the world the right to copy, modify and distribute that code freely," ... "From the moment SCO distributed the Linux kernel under GPL, they licensed the use. Always. That's what our license says."
However, as of Monday, December 8, 2003, SCO Group was still distributing the Linux kernel under the terms of the GNU GPL via their FTP server. (ftp.sco.com OpenLinux 3.1.1 linux-2.4.13-21S src.rpm [1] (FTP))
SCO currently claims:
- Any code belonging to SCO that might have been GPL'd was done by SCO employees without proper legal authorization, and thus is not legally GPL'd.
- That for code to be GPL'd, the code's copyright owner must put a GPL notice before the code, but since SCO itself wasn't the one to add the notices, the code was never GPL'd.
Novell enters the controversy
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 transferring 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.
But in subsequent letters to SCO that Novell released on December 22, Joseph LaSala Jr, Novell's general counsel, argued that the amendment provided for a copyright transfer only under certain conditions that SCO has allegedly failed to meet.
SCO was quick to dismiss Novell's claims. "We see this as a fraudulent filing of copyright notices ... and we'll take the appropriate measures as necessary with our legal team," SCO CEO Darl McBride said during a conference call held to discuss his company's most recent financial results.
Fear, uncertainty and doubt
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."
SCO Group then filed subpoenas for Richard Stallman and Linus Torvalds on November 13, 2003. [1]
Allegations of reverse copying
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.
IBM's AIX licence
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.
Scheduler code claims
Also on June 15, postings on Slashdot and The Inquirer reported claims that:
- SCO's claimed copied code was shown without NDA in Germany by mistake
- the code seen was in the Linux kernel scheduler, one of the most heavily-scrutinized parts of the Linux kernel
- The dates on both pieces of code were censored, which might mean that SCO could have copied from Linux.
Increased damages claims, and read-copy-update claims
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.
SCO announces that it will not sue its own customers
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:
- SCO will continue to support our SCO Linux and OpenLinux customers and partners who have previously implemented those products and we will hold them harmless from any SCO intellectual property issues regarding Linux.
SCO to offer a "Linux licensing program"?
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.
IBM points out SCO's GPL licensing of code
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.
Red Hat legal action and SCO's response
On August 4, 2003, it was reported that Red Hat has filed a legal action against SCO ([1], [1]). According to the filing, Red Hat has reqested that the court make:
- a permanent injunction against SCO's campaign against Linux
- a number of declaratory judgments
- that Red Hat has not violated SCO's copyright
- that Red Hat has not violated SCO's trade secrets rights
- and several other claims for relief
The letters to Red Hat also hint at possible legal retaliations against Red Hat, saying:
- "Of course, we will prepare our legal response as required by your complaint. Be advised that our response will likely include counterclaims for copyright infringement and conspiracy. I must say that your decision to file legal action does not seem conducive to the long-term survivability of Linux."
- "SCO has already been halted in Germany and we applaud Red Hat's actions to help end their activities in the US -- and beyond. We applaud their efforts to restrict the rhetoric of the SCO Group -- and the FUD they are trying to instill -- and will determine quickly what actions SuSE can take to support Red Hat in their efforts." [1]
SCO announces licensing fees
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.
IBM counterclaims against SCO
On August 7, IBM filed their counterclaims against SCO. They make 10 counterclaims, including:
- breach of contract
- Lanham Act violation
- Unfair competition
- Unjust enrichment
- Intentional interference with prospective economic relations
- Unfair and deceptive trade practices
- Breach of the GNU General Public License
- and four counts of patent infringement
Discovery
The discovery portion of the lawsuit has been dragging on for an unusual amount of time. The basis for SCO's suit is that any code developed on top of SVR5 is a derivative work of SVR5 (which would include AIX), and that IBM has publicly admitted to contributing AIX code to the Linux kernel. Since SCO has never seen the AIX code, it has, as part of the discovery process, deposed IBM for the AIX code, so that it can compare AIX code to Linux kernel code. IBM, rejecting SCO's concept of derivative work, has deposed SCO for which lines of code it claims are infringing. SCO has responded that it can't determine which code is infringing until it has had the chance to look at the AIX code.
Examples of controversial code revealed
- SCO reveals a sample of alleged copied code at a reseller show: see Why SCO won't show the code
- Code appears to be historical UNIX code;
- UNIX creator Dennis Ritchie confirms that either he or Ken Thompson wrote this code, which is released under the BSD licence: see Ancient UNIX Released Under What Terms? and SCO Slideshow
- This code therefore appears to be perfectly legally incoporated into Linux, as originally believed by Linux advocates
- It is claimed that SCO removed original licence text from UNIX source, allegedly violating the BSD licence; see Embarrassing Dispatches From The SCO Front
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.
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.
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.
First discovery hearing
On December 5, 2003, in the first oral arguments relating to the discovery process, a judge granted IBM's two motions to compel against SCO, and deferred consideration of SCO's motions until later. This gave SCO a 30 day deadline to provide "with specificity" which lines of code in Linux they claim form the basis of their case. This was widely regarded as a first-round victory for IBM.
Copyright claims, December 2003
In late December 2003, new developments involving copyright claims emerged.
Novell registered their claim to the copyright of original UNIX source code, effectively challenging SCO's registration of the same code. [1] [1]
SCO claimed in a press release to have sent DMCA notification letters alleging copyright infringement class="external">[1 Alleged copies of these letters were posted online at Groklaw and LWN. The letters give the names of 65 files in the Linux source code tree which supposedly incorporate "copyrighted binary interfaces". A rebuttal by Linus Torvalds was then posted on Groklaw.
External links
Press coverage
- Please see SCO v. IBM Linux lawsuit: Press coverage for an extensive list of links to articles in various publications.
Documents
- Caldera's announcement for the licensing of certain Unix versions under the BSD license
- Greg Lehey's analysis of the code that SCO alleges is in violation of their copyright
- Bruce Perens' analysis of the code that SCO alleges is in violation of their copyright
- Photograph of a piece of controversial code, taken at SCO Forum
- Photograph of a piece of controversial code, taken at SCO Forum
- The FSF's / Eben Moglen's reply to SCO's claims that the GPL is invalid
- OSDL pressrelease for a Q&A paper written by Lawrence Rosen
- SCO pressrelease: comments on insider transactions
- SCO's financial report for the third quarter of 2003
- SCO pressrelease: "The SCO Group Announces Final Termination of IBM / Sequent's Contract to Use or License Dynix Software"
- SuSE pressrelease: "SuSE Supports RedHat's Open Source Initiative"
- The FSF is considering dropping SCO Unix support from GCC
- SCO's response to IBM's counterclaims
- IBM's counterclaims against SCO (text transcription)
- Red Hat legal filing against SCO (.pdf file)
- SCO's "Intellectual Property Compliance License for Linux"
- SCO's press release and letters to Red Hat from August 4 2003
- SCO's legal filing
- SCO's amended filing
- Eric Raymond's response to the SCO filing
- Novell's announcement relating to the lawsuit
- Bruce Perens' response to the Novell announcement
- Read-copy-update paper
- SCO vs. IBM: a decision matrix
- Extensive SCO vs. IBM case information and background
- Greg Lehey's analysis
- Richard Stallman's Interview with ZD Net
- Free Software Foundation Statement on SCO v. IBM
- SCO press release: SCO Registers UNIX(R) Copyrights and Offers UNIX License
- Eben Moglen comments on SCO's claims (.pdf file)
- The Unix pedigree chart, according to SCO
Commentaries, Opinions etc.
- August 19, 2003: Second impressions (from SCO forum 2003), part 1
- August 19, 2003: Second impressions (from SCO forum 2003), part 2
- August 19, 2003: Second impressions (from SCO forum 2003), part 3
- August 11, 2003: ZDNet, Thomas Carey: SCO vs. the Linux world…what's a Linux user to do?
- August 11, 2003: Newsforge.com, Robin "Roblimo" Miller: SCO sells a Linux license
- August 9, 2003: The National Post: Linux's lucky lawsuit
- August 4, 2003: it-director.com, Robin Bloor: This one will run and run
- July 24, 2003: ZDNet, Bryan Taylor: SCO's claims have absolutely no credibility
- July 22, 2003: ZDNet, Dan Farber: Is this the end of free Linux?
- July 18, 2003: ZDNet, Charles Cooper: Who's liable for Linux?
- June 20, 2003: ZDNet, Michael Kanellos: One outcome ignored -- SCO could win
- June 17, 2003: ZDNet, David Berlind: SCO vs. IBM: Lengthy battle could hurt Linux
- June 12, 2003: Eben Moglen: Free software matters special
- June 12, 2003: NZHeretic: The Trillian Project: Proof of SCO's actions
- June 9, 2003: Edward Felten: Lessons from the SCO/IBM Dispute
- June 6, 2003: NewsForge, Robin "Roblimo" Miller: Darl McBride doesn't understand Linux
- May 28, 2003: Bruce Perens: SCO's Big Lie
- May 27, 2003: news.com, Ted Schadler and Christopher Mines: Commentary: IBM will nullify SCO's Linux threat
- May 22, 2003: ZDNet, Eric Raymond: Tragedy to farce -- the SCO vs. IBM lawsuit
- May 19, 2003: news.com, Bruce Perens: The fear war against Linux
- May 16, 2003: lwn.net: ...and if SCO is right...?
- May 15, 2003: MozillaQuest: IBM Response to SCO-Caldera Complaint Is Outrageous!
- May 14, 2003: Newsfactor, Joe 'Zonker' Brockmeier: SCO: Put up or shut up
- May 2, 2003: ofb.biz, Timothy R. Butler: It's Official: SCO Declares IP Jihad on Linux
- March 26, 2003: MozillaQuest: IBM Replies to Some SCO Allegations but Hides Lots Too
- March 7, 2003: ofb.biz, Timothy R. Butler: Why SCO needs to go
- March 7, 2003: MozillaQuest: SCO-Caldera vs. IBM UNIX-Linux Dispute, a PR Nightmare for Caldera
Interviews
- August 15, 2003: OfB.biz: Interview with Richard Stallman
- August 15, 2003: Software Development Times: Interview with Linus Torvalds
- August 7, 2003: ZDNet: Interview with Red Hat CEO Matthew Szulik
- July 8, 2003: ZDNet: Interview with Linus Torvalds
- June 23, 2003: ZDNet: Inverview with Richard Stallman
- June 16, 2003: ZDNet: Interview with SCO's Darl McBride
- May 16, 2003: vnunet: Interview with SCO's Chris Sontag
- April 24, 2003: Computer Reseller News: Interview with SCO's Darl McBride
Humour
- SCO Group to Shoot Babies
- Ars Technica: The Nigerian SCO Connection
- The "Software Wars" Map
- Brent Michalski buys a SCO license
- Rick Moen: Parody: Modern SCO Executive
- welovethescoinformationminister.org
- SCO parody of a Monty Python's Cheese Shop sketch
- Someday the mountain might get 'em but the law never will
Other Resources
- A community wiki tracking the case
- GROKLAW, a weblog maintained by a paralegal researching the case
- The law office of Lewis A. Mettler
- Netcraft: What platform is sco.com running on?
Note: Please note that none of the various claims made have yet been tested in court.
