[DMCA-Activists] Latest from SCO

[Seth Johnson]

> http://news.com.com/2100-1016_3-1017965.html


SCO suit now seeks $3 billion from IBM 


By Stephen Shankland 
Staff Writer, CNET News.com
June 16, 2003, 9:20 PM PT


SCO Group has upped the ante in an amendment to its suit against IBM,
seeking more than $3 billion in damages for alleged copying of proprietary
Unix intellectual property into Linux.

In March, SCO Group surprised the world with a lawsuit seeking more than $1
billion against IBM in the case. An amended complaint, filed Monday in U.S.
District Court in Utah, added more claims against IBM, tripled damages to at
least $3 billion, sought an injunction prohibiting IBM from selling Unix,
and detailed some accusations of technology moved to Linux. 

SCO seeks at least $1 billion in damages from IBM's alleged breach of its
contract with SCO; another $1 billion for breach of the Unix contract signed
by Sequent, which IBM acquired in 1999; and another $1 billion for unfair
competition. SCO also seeks more for misappropriation of trade secrets and
punitive damages. 

The amended suit also asserts that SCO holds copyrights to Unix, a point
that could be key in future Linux and Unix litigation. Novell, which owned
Unix intellectual property before selling it to SCO's predecessor, initially
disputed SCO's ownership, but later relented. 

However, the suit still makes no claims of copyright violation, which
several independent attorneys believe could lead to stronger claims than
that of trade secret infringement. After the Novell spat, SCO said it had
not registered those trademarks. Independent attorneys say SCO must register
the trademarks before basing legal action on them. 

SCO has made no secret in recent months that it hired high-profile attorney
David Boies to spearhead its case against IBM, but the company's legal
representation in Utah courts is also noteworthy. The company retained Brent
O. Hatch and Mark F. James of the law firm Hatch, James & Dodge. Hatch is
the son of Sen. Orrin Hatch, R-Utah, a spokesman for SCO confirmed Monday. 

The suit specifically blames Linux founder and leader Linus Torvalds for
letting proprietary Unix code into Linux. 

"As IBM executives know, a significant flaw of Linux is the inability and/or
unwillingness of the Linux process manager, Linus Torvalds, to identify the
intellectual property origins of contributed source code that comes in from
those many different software developers. If source code is code copied from
protected Unix code, there is no way for Linus Torvalds to identify that
fact," the suit said. "As a result, a very significant amount of Unix
protected code is currently found in Linux 2.4.x and Linux 2.5.x releases in
violation of SCO's contractual rights and copyrights." 

Torvalds said in an e-mail interview that the Linux developer community's
process is transparent and called on SCO to reveal what its specific
complaints are. 

"It's not our side that isn't identifying the code. We'll work damn hard to
identify everything they care to name," Torvalds said. "In fact, the source
control system is out there in the public, and it identifies the source and
the reason for patches," mentioning the BitKeeper repository he's used for
the past two years to keep track of code in the heart, or kernel, of Linux. 

Torvalds sided with IBM over what rights Big Blue has over its code. "IBM,
as the original sole author to a particular piece of code, has full
copyright rights, and they (not SCO) can use the code they wrote themselves
in any way they see fit," Torvalds said. 

In its amendment, the Lindon, Utah-based company toned down some of the
language questioning the abilities of the open-source community that
collectively creates Linux by sharing code freely. 

Gone is the statement, "Prior to IBM's involvement, Linux was the software
equivalent of a bicycle. Unix was the software equivalent of a luxury car."
Also missing is the statement, "It is not possible for Linux to rapidly
reach Unix performance standards for complete enterprise functionality
without the misappropriation of Unix code, methods or concepts to achieve
such performance, and coordination by a larger developer, such as IBM." 

But the original idea is still intact: Redesigning Linux for use by
demanding business customers "is not technologically feasible or even
possible at the enterprise level without (a) a high degree of design
coordination, (b) access to expensive and sophisticated design and testing
equipment; (c) access to Unix code and development methods; (d) Unix
architectural experience; and (e) a very significant financial investment,"
the amended suit says. 

The suit details much of the Unix and Linux chronology, but still missing
from the complaint's history of Linux are discussions of SCO's involvement
in Linux development under its previous names, Caldera International and
Caldera Systems. Caldera, which raised $70 million for its Linux sales
business through a March 2000 initial public offering, was a member of the
Trillianproject to bring Linux to Intel's Itanium processor and helped found
the Open Source Development Lab to make Linux suitable for high-end
multiprocessor servers. 

The suit also adds illegal export issues stemming from the worldwide
availability of open-source software. SCO claims IBM has breached its
contract by making multiprocessor operating system technology available "for
free distribution to anyone in the world," including residents of Cuba,
Iran, Syria, North Korea and Libya, countries to which the United States
controls exports. The open-source technology IBM released "can be used for
encryption, scientific research and weapons research," the suit said. 

SCO also detailed one element of technology that it asserts IBM copied, the
Remote Copy Update (RCU) system, for relieving some memory bottlenecks on
multiprocessor servers. 

The amended complaint includes an IBM copyright on the RCU technology that
names the an engineer as the author, with work "based on a Dynix/ptx
implementation by Paul Mckenney (sic)." Dynix/ptx was Sequent's version of
Unix for servers with multiple Intel processors. 

It appears that RCU indeed stems from work in Dynix/ptx. In a paper on his
Web site, IBM's Paul McKenney says RCU was included in Dynix/ptx in 1994.
And the Linux Scalability Effort's Web site says that RCU patches are "based
on original DYNIX/ptx code (released by IBM under GPL)"--the GPL referring
to the General Public License that covers Linux. Torvalds accepted RCU into
the Linux kernel in October 2002. 



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