IBM the Defender of Open Source

IBM the defender of Open Source!

(and the case of the Greek font)

SCO Grp, et al v. Intl Bus Mach Inc Filed: 03/25/03; US District Court; District of Utah Motion to Compel Hearing Dec 6, 2003

This case will have major implications for the software industry and investors alike. Many products now use and incorporate open source. How will it affect your competitive advantage?

Note: Open source has major implications for software. I realize that 'open source' might be too technical for some of my audience, but, for the software industry, it is the equivalent of the RIAA 's attack on music downloaders for the software industry with far broader implications. This case seeks to undo many of the new rules of software development. I’ve provided a basic primer on open source on the side to give you the buzz words.

OVERVIEW. Most know that SCO (aka Caldera) has sued IBM for allegedly “giving away or disclosing proprietary UNIX source code and methods” for external business purposes, such as to the Linux community. Caldera sued IBM for breach of contract, unfair competition, interference with contract and misappropriation of Utah’s trade secret law. IBM coutersued sued Caldera for, among other things, misrepresentation under the Lanham Act and Breach of the the GNU GPL. (See the Basic Primer on Open

WATCH OUT; HERECOMES THE SOFTWARE ENGINEERS.

In a show of force reminiscent of the Gladiators, the open-source community has come out against SCO. They have attacked SCO’s claims one by one using logical technical analysis. Clearly, SCO's counsel never took a basic course in open source or knew their approach would attract this wrath. This is one group you do not want as an enemy. The open-source community has picked apart every sentence of SCO’s complaint, including and a line-by-line attack on recent public statements about their claims to defend their movement (and to help IBM win this suit). Afterall, if SCO is successful in its attack on Linux, the open source movement is called into question. If Linux can be attacked by SCO, then all of the big and small software companies are at risk because Microsoft, Oracle, Sun and Novell (in addition to IBM) all use open-source and Linux. That is hardly the setback we need just when IT spending has begun to warm. Specifically, SCO alleges that:

(1) As a result of several acquisitions, it owns all rights to the UNIX and UnixWare operating systems. Caldera claims its rights include the copyrights and the right to enforce them in the use and distribution of UNIX by UNIX vendors such as IBM;

(2) Linux is materially based on UNIX source code, particularly Linux 2.4.x releases and the development kernel, Linux 2.5.x;

(3) IBM (and others) have improperly contributed SCO’s Unix intellectual property to the development of Linux, a free operating system;

(4) IBM has improperly distributed UNIX modifications such as UNIX System V source code by contributing code to Linux 2.4.x and 2.5.x because the latter are unauthorized derivatives of UNIX;

(5) And among other things has incorporated and has induced others to incorporate Caldera’s proprietary software into Linux open source software offerings.

To begin to enforce its rights, Caldera terminated IBM’s right to use or distribute any software based on UNIX System V or its own version of UNIX, known as “AIX,” as of June 13, 2003 unless it cured these breaches. Of course, IBM alleges that termination occured without proper notice of breach.

NOVELL RESPONSE. Although not a party in the lawsuit, Novell shot back almost immediately with a press release stating that SCO never acquired the copyrights it seeks to enforce.

 

IBM’S TWO-PRONGED DEFENSE/ATTACK:

(1) SCO HAS BREACHED THE GPL ITSELF. IBM has counterclaimed that SCO itself has breached the GPL. This appears to be the first such tactic as a defense in a case of this kind. IBM asserts that because SCO itself has a Linux product and released certain code under the GPL it agreed not to assert certain proprietary rights (such as the right to collect license fees) over code distributed by others under the GPL. Because SCO has done just that, it has breached the GPL (§5).

By breaching the GPL, IBM argues, SCO’s rights to distribute pursuant to the GPL have been terminated under §4. In their sixth counterclaim, IBM asserts that as a result of this breach, IBM and countless developers have suffered economic loss and are entitled to an award. The efficacy of this counterclaim is yet to play itself out as a matter of law. But it by invoking it, IBM has called in the open-source community as an ally and has levied their collective strength against SCO.

(2) SCO'S FAILED PROOF IBM’s basis defense appears to be that SCO cannot show that IBM released UNIX code into Linux. IBM argues that SCO has not presented the code because it is not there. Based on the two examples SCO has shown the public (but has not produced to IBM), SCO fails in its proof. A December 6 hearing will make the buck stop if the District Judge forces SCO to identify specifically the code it asserts IBM released into LINUX.

Specifically, in it’s recent motion to compel (11/6/03 filed; 12/6/03 hearing); IBM seeks to force SCO to identify specifically what source code SCO alleges IBM distributed into in Linux. SCO has not done so thus far. When SCO has identified the basis of its claim at a public software conference the example of code SCO identified was in fact other (non-SCO-related ) open source software.

A) SCO DOESN’T OWN BSF: “Theirs” Is not “There” During a now-public, August 2003, presentation SCO counsel and company presented their case that Linux is an unauthorized copy of SCO’s UNIX and that IBM is one of many alleged infringers. Quickly, the open source community turned SCO’s case upside down and identified that of the two examples SCO cited: “one isn't SCO's property at all, and the other is used in Linux under a valid license. If this is the best SCO has to offer, they will lose.” Specifically, in Slide 15 shown here below

SCO compares System V code (theirs) to the Linux Kernel Code to attempt to show one-for-one copying. SCO covered up “their” code by converting the original font into Greek characters (really!). The open source community quickly converted the Greek font back into the original and proved that the code SCO pointed to was not SCO’s at all. Rather, the code is from the well known internet firewall software known as the Berkeley Packet Filter (aka "BPF"). BPF was created at the Lawrence Berkeley Laboratory and funded by the US Gov. The open source community gorged SCO’s claim by showing that in a reversal of fortune, “SCO later copied the software into Unix System V.” (See Bruce P's analysis)

B) ANY CODE THAT TOUCHES UNIX IS OWNED BY SCO: EXAMPLES ARE NOT SCO OWNED

SCO alleges that it owns essentially all of the code in Linux that has been touched at all by IBM, SGI and other Unix licensees. SCO, it is said, argues that when it acquired Novell’s rights under an AT&T Agreement, SCO acquired the rights to all derivative works of UNIX (and thus Linux). It should be noted that the agreement itself does not have an ownership provision which clearly sets forth that AT&T (then licensor) retains rights to derivative works. That being said, the second sentence asserts that all derivative works are subject to the grant to use the SOFTWARE PRODUCT solely for internal business purpose. Under this line of thinking, it is unclear how IBM will assert that it owns the derivative works (aka Linux contributions).

SCO set this out in their slide 6:

SCO argues that derivatives such as RCU, NUMA JFS are all unauthorized derivatives of UNIX. But here is where they went wrong.

C) SCO DOES NOT OWN JFS. It is well known that SCO’s claim to own, or have rights to, JFS, IBM's Journaling File System, is in error. Bruce P adeptly points out that the JFS in Linux was originally developed for the OS/2 operating system, and was later ported to Linux. It doesn't share code with the JFS implementation in System V.

D) SCO DOES NOT OWN RCU (EITHER).

RCU or Read Copy Update, software that keeps processors in a multi-processor system from interfering with each other, was developed by Sequent, a company later purchased by IBM. It seems that, Sequent developed RCU under Dynix, a Unix-derived operating system. IBM later removed RCU from Dynix, separating it from any code owned by SCO, and added it to Linux. Similarly, SGI's XFS, the eXtent FileSystem, was separated from IRIX, a Unix-derived operating system, and ported to Linux.It will be interesting to see what SCO puts forward and whether the court will compel its production.

SCO will need a lot more ammo than what has shown thus far. For now, the GPL seems safe. Let us wait and see what the district court judge does on Deceber 6, 2003. What do you think?