Ahh, everyone's favorite - the SCO suit. This talk is coming from David Bender, a well known attorney in this area of law. A short digression to set the table: Unix was born in 1969 at Bell Labs. It was widely licensed on nominal terms.
So onto SCO vs. IBM. Filed in 2003. Three complaints, and three sets of counter-claims. There's a motion pending for another complaint. very heavily litigated - as of April 2005, 437 docket entries. Five week trial is set for November 2005. Plaintiff: SCO, who markets Unix software. Defendent: IBM - markets a version of Unix called AIX. There are third party products - Linux in particular - that are Unix-like. The Linux claim is that this software was developed without relying on Unix code.
SCO alleges that IBM contributed a great deal of code derived from Unix software. The slide states that Linux is making inroads against MS, but the bigger issue, IMHO, is that it's making inroads against the various commercial Unix vendors, with SCO, at the low end, taking large scale damage. The most interesting thing to me, at this point - in my reading of the technical blogosphere, the SCO suit gets no respect (I certainly give it none, see above) - and is given no chance of success. The feel in this room is different. David points out that the biggest problem is that copyright law was written without software in mind, and it's fitting badly.
So how did Unix assets convey? From AT&T to Novell to Sabta Cruz Operation to the SCO Group (note: there's dispute on what went where on some of those steps). SCO claims that IBM breached its Unix license agreement with SCO's predecessor, AT&T by contributing derivative work to Linux. Their claim is that without these contributions, Linux would not be a viable competitor to SCO's Unix software (cue the loud guffaws from the tech blogosphere right there). They also claim copyright infringement, and claim that under the original AT&T agreement, they had the right to terminate IBM's license (which they did in 2003). Finally, they claimed unfair competition. SCO claims that IBM was well aware of these contracts and their meaning. SCO additionally claims that IBM intentionally harmed their business relationships by badmouting them with shared partners.
What does SCO want? $1B in restitution, and an injunction. Clearly, IBM doesn't agree :) The crux, it seems to me, is that SCO accepted the GPL by modifying and distributing Linux products for years. So, it's a "sour grapes" argument is what IBM says. IBM states that SCO acquired the rights to Unix software in an attempt to unify Unix and Linux - and that when that failed, they turned to a strategy of litigation.
Originally, SCO tried to claim a trade secrets infringement. When they couldn't identify any, they dropped that and started claiming that you need a SCO license to run Linux. IBM states that Linux developers will remove infringing code, if only SCO will identify it. SCO will not identify said infringement. So, IBM counter-claims that the AT&T/IBM agreement is breached by the attempted termination. They also make other claims under the lanham act, and claim that SCO has breached the GPL.
The original AT&T license looks confusing to me - it seems to state that IBM only had the right to use Unix and/or derivative works on internal systems and defined CPUs. If that's the cae, how do they ship any derived work? What am I missing here? This whole thing gets into what does or doesn't constitute a "derived work". It's at this point that I can state that I'm glad I'm not a lawyer - this is making my head spin. There's more - the people who signed the original IBM/AT&T contract could be called to testify, and they could be asked to explain what they understood the term "derivative work" to mean at the time. On another note, in Discovery, how does SCO identify supposedly infringing work?
SCO asserts that the added source is a derived work. Therefor, any of this code contributed to Linux constitutes a breach of the AT&T agreement. That's because derived work, according to the original license, it could only be used for internal purposes on designated machines. Then there's the GPL definition of the GPL:
either the program or ant derivative work under comyright law, that is to say, a work containing the Program or a portion of it...
Now David goes back to the Unix conveyances. There's no dispute that AT&T sold all rights to Novell. There's a huge dispute over what did or didn't go the Santa Cruz Operation in 1995. So Novell sold everything in 1.1(a) to SCO, except for schedule b:
- A "All rights and ownership of Unix"
- B "All Copyrights"
Ok, that's confusing :) There was a 1996 amendment - revised (b) to exclude all copyrights except those owned by Novell and required by SCO. Gah! The original agreement between IBm and AT&T doesn't seem to grant irrevocable rights, but an amendment executed by IBM, Novell, and SCO states that on payment of considerations, they would get irrevocable rights.
SCO then moved on to sue Novell in 2004 for "slander of title to the Unix copyrights" - more or less, that Novell's claims about who owns what were damaging and made "with malice". Novell claims that the documents SCO relies on for transfer of copyright are not clear enough. There was a ruling last year that went Novell's way, but no ruling on whether a further amendment cures that. No decision yet - not clear whether it will impact the IBM suit.
Then, Red Hat sued SCO for creating FUD around Linux (and thus their business). That was filed in fall 2003. Court has stayed the case pending resolution of the IBM case. They wanted declaratory judgment that they did not infringe or violate copyright.
Then, SCO started suing end users. AutoZone was using SCO Unix, switched to Linux after SCO dropped support. SCO alleges that Linux is a derived work, and that AutoZone is infringing SCO's copyright. AutoZone tried to move it, failed, and this has been stayed pending IBM.
Then SCO sued Daimler Chrysler for breach of contract, because they switched from SCO Unix to Linux, which they claim is a derived work. Most of this one has been dismissed.
So - when the dust settles, what will the outcome be? Who wins? SCO? IBM? Linux backers? The proprietary Unix vendors? Who? David won't make a prediction at this point. He does think it's possible that SCO could lose on copyright but win on contract grounds.