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Encyclopedia > SCO v. IBM
Intellectual property law
Primary rights
Sui generis rights
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SCO v. IBM is an important civil lawsuit in the US Federal court system. The case is likely to resolve legal uncertainties about the use of the Linux operating system and the legal status of "methods and concepts" originally used in the UNIX operating system. Image File history File links This is a lossless scalable vector image. ... For the 2006 film, see Intellectual Property (film). ... Copyright symbol Copyright is a set of exclusive rights regulating the use of a particular expression of an idea or information. ... A patent is a set of exclusive rights granted by a state to a patentee for a fixed period of time in exchange for a disclosure of an invention. ... For other senses of this word, see Trademark (disambiguation). ... A geographical indication (sometimes abbreviated to GI) is a name or sign used on certain products or which corresponds to a specific geographical location or origin (eg. ... Industrial design rights are intellectual property rights that protect the visual design of objects that are not purely utilitarian. ... A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information used by a business to obtain an advantage over competitors within the same industry or profession. ... Related rights is a term in copyright law, used in opposition to the term authors rights. The term neighbouring rights is exactly equivalent, and a more literal translation of the original French droits voisins. ... A trade name, also known as a trading name or a business name, is the legal name of a business, or the name which a business trades under for commercial purposes. ... The term domain name has multiple related meanings: A name that identifies a computer or computers on the internet. ... Sui generis is a (post) Latin expression, literally meaning a scholar like what pradeep is or unique in its characteristics. ... Database rights are a form of exclusive right introduced by European Union Law to those countries which follow EU Law in 1996. ... A mask work is a two or three-dimensional layout of an integrated circuit (IC), i. ... Plant breeders rights, also known as plant variety rights (PVR), are intellectual property rights granted to the breeder of a new variety of plant. ... In European Union member countries, a supplementary protection certificate (SPC) is a sui generis, patent-like, intellectual property right. ... Traditional knowledge (TK), indigenous knowledge (IK), and local knowledge generally refer to the matured long-standing traditions and practices of certain regional, indigenous, or local communities. ... It has been suggested that civil trial be merged into this article or section. ... Motto: (Out Of Many, One) (traditional) In God We Trust (1956 to date) Anthem: The Star-Spangled Banner Capital Washington D.C. Largest city New York City None at federal level (English de facto) Government Federal constitutional republic  - President George Walker Bush (R)  - Vice President Dick Cheney (R) Independence from... Linux (IPA pronunciation: ) is a Unix-like computer operating system. ... Filiation of Unix and Unix-like systems Unix (officially trademarked as UNIX®) is a computer operating system originally developed in the 1960s and 1970s by a group of AT&T employees at Bell Labs including Ken Thompson, Dennis Ritchie and Douglas McIlroy. ...


On March 6, 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, and then $5 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. is the 65th day of the year (66th in leap years) in the Gregorian calendar. ... 2003 (MMIII) was a common year starting on Wednesday of the Gregorian calendar. ... The SCO Group, Inc. ... International Business Machines Corporation (IBM, or colloquially, Big Blue) (NYSE: IBM) (incorporated June 15, 1911, in operation since 1888) is headquartered in Armonk, New York, USA. The company manufactures and sells computer hardware, software, and services. ... For the 2006 film, see Intellectual Property (film). ... Open source refers to projects that are open to the public and which draw on other projects that are freely available to the general public. ... Diagram of the relationships between several Unix-like systems A Unix-like operating system is one that behaves in a manner similar to a Unix system, while not necessarily conforming to or being certified to any version of the Single UNIX Specification. ... It has been suggested that Fortune 500 be merged into this article or section. ... Categories: Magazines stubs | Time Warner subsidiaries | Business magazines ...


The claims and counter-claims made by both sides then escalated, with both IBM and Linux distributor Red Hat starting legal action against SCO, SCO threatening Linux users who do not take out SCO UNIX licenses, and SCO suing Novell (see also SCO-Linux controversies), AutoZone and DaimlerChrysler. Red Hat, Inc. ... To license or grant license is to give permission. ... After The SCO Group initiated their Linux campaign, they made several statements that they were the owners of Unix, probably meaning (though never explicitly said) that they were the owners of the copyrights of the original ATT source code and derivatives. ... The SCO-Linux controversies are a series of legal and public disputes between the software company SCO Group (SCO) and various Linux vendors and users. ... AutoZone, a corporate user of Linux and former user of SCO OpenServer, was sued by The SCO Group on March 3, 2004. ... The SCO Group v. ...


On September 30, 2003, Judge Kimball (the presiding federal circuit court judge) granted the SCO Group's request for a delay until February 4, 2004, “to file any amended pleadings or add parties to this action”. The schedule was amended again on July 1, 2005. In December 2006 the trial date was vacated pending the resolution of SCO's litigation with Novell, all parties agreeing that SCO v. Novell will resolve issues relating to SCO v. IBM. is the 273rd day of the year (274th in leap years) in the Gregorian calendar. ... 2003 (MMIII) was a common year starting on Wednesday of the Gregorian calendar. ... is the 35th day of the year in the Gregorian calendar. ... shelby was here 2004 (MMIV) was a leap year starting on Thursday of the Gregorian calendar. ... is the 182nd day of the year (183rd in leap years) in the Gregorian calendar. ... Year 2005 (MMV) was a common year starting on Saturday (link displays full calendar) of the Gregorian calendar. ...


In an “Order Granting in Part IBM's Motion to Limit SCO's Claims” dated June 28, 2006, Judge Brooke Wells (the federal magistrate judge presiding over discovery aspects of the case) barred SCO from asserting 187 of the 298 allegedly misused items that IBM had moved to exclude from the lawsuit for lack of specificity[1], stating “many of SCO’s arguments and much of Mr. Rochkind’s declaration miss the mark”, and comparing SCO's tactics with those of an officer who accuses a citizen of theft, but will not disclose what the citizen is accused of stealing. “Certainly if an individual was stopped and accused of shoplifting after walking out of Neiman Marcus, they would expect to be eventually told what they allegedly stole. It would be absurd for an officer to tell the accused that ‘you know what you stole I'm not telling.’ Or, to simply hand the accused individual a catalog of Neiman Marcus' entire inventory and say ‘it's in there somewhere, you figure it out.’” [2][3] is the 179th day of the year (180th in leap years) in the Gregorian calendar. ... For the Manfred Mann album, see 2006 (album). ... Marc J. Rochkind is a computer programmer, most famous for his textbook Advanced Unix Programming, regarded as a standard text on how to program to the Unix operating system. ... Categories: Stub | Retail companies of the United States ...


This leaves a total of 111 allegations, none of which have been judged on their merits, at issue out of the 294 originally put forth by SCO. Judge Kimball ruled earlier that dispositive motions may not be submitted until after the end of discovery, so neither side was permitted to ask for summary judgement prior to December 2005. IBM (in their motion challenging the 198 claims) pointed to a claim that was sufficiently specific and could be shown to be an original disclosure by Intel, not IBM.

Contents

SCO's claims

SCO's lawsuit has been consistent only in its claim of breach of contract (since the abandonment in early 2004 of its claim of misappropriation of trade secrets). SCO's initial claims were: Breach of contract is a legal concept in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other partys performance. ... A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information used by a business to obtain an advantage over competitors within the same industry or profession. ...

  • Misappropriation of trade secrets
  • Unfair competition
  • Interference with contract
  • Breach of IBM Software Agreement

On July 22, 2003, SCO amended its complaint. It added two new claims: Antitrust is also the name for a movie, see Antitrust (movie) Antitrust or competition laws legislate against trade practices that undermine competitiveness or are considered to be unfair. ... is the 203rd day of the year (204th in leap years) in the Gregorian calendar. ... 2003 (MMIII) was a common year starting on Wednesday of the Gregorian calendar. ...

  • Breach of IBM Sublicensing Agreement
  • Breach of Sequent Software Agreement

On February 27, 2004 SCO amended the complaint again. It dropped the trade secrets claim, but added the following claims: is the 58th day of the year in the Gregorian calendar. ... shelby was here 2004 (MMIV) was a leap year starting on Thursday of the Gregorian calendar. ...

  • Breach of Sequent Sublicensing Agreement
  • Copyright infringement
  • Interference with contract
  • Interference with business relationships

SCO's claims in press releases and interviews have changed repeatedly as the affair has progressed. SCO has also both claimed and denied that the alleged copyright violations involved the Linux kernel. Computerworld reported Chris Sontag of SCO as saying: This article or section does not adequately cite its references or sources. ... The Linux kernel is a Unix-like operating system kernel. ...

It's very extensive. It is many different sections of code ranging from five to ten to fifteen 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.

SCO refuses to allow access to the samples of code containing the alleged copyright violations except under a non-disclosure agreement (NDA). SCO's NDA would not only require that the signer keep confidential which lines of code SCO contested, but would also require that they hold confidential any information SCO told them, even if they already knew that information before being informed of it by SCO; all Linux kernel developers have considered this to be far too restrictive, so none of them have signed it. However, at SCO's annual reseller's convention in August of 2003 they revealed two short sections of code they alleged were copyright violations, and images of Darl McBride's presentation of this code were soon after published on German computer magazine publisher Heinz Heise's website. [4] A non-disclosure agreement (NDA), also called a confidential disclosure agreement (CDA), confidentiality agreement or secrecy agreement, is a legal contract between at least two parties which outlines confidential materials or knowledge the parties wish to share with one another for certain purposes, but wish to restrict from generalized use. ... Heinz Heise is a German publishing house. ...


On May 30, 2003, 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. [5] 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. [6] SCO has since upwardly revised this figure to over a million lines of code, however. [7] is the 150th day of the year (151st in leap years) in the Gregorian calendar. ... 2003 (MMIII) was a common year starting on Wednesday of the Gregorian calendar. ... A Chief Executive Officer (CEO), or Chief Executive, is the highest-ranking corporate officer, administrator, corporate administrator, executive, or executive officer, in charge of total management of a corporation, company, organization or agency. ... Darl McBride (b. ... Source lines of code (SLOC) is a software metric used to measure the amount of code in a software program. ...


SCO's major claims have now been reported as relating to the following components of the Linux kernel:

These claims flow from the accusation of breach of contract. The contract between IBM and AT&T (to which SCO claims to be successor in interest) allows IBM to use the SVR4 code, but the SVR4 code, plus any derivative works made from that code, must be held confidential by IBM. According to IBM's interpretation of the contract, and the interpretation published by AT&T in their "$ echo" newsletter in 1985, "derivative works" means any works containing SVR4 code. But according to SCO's interpretation, "derivative works" also includes any code built on top of SVR4, even if that does not contain, or even never contained, any SVR4 code. Thus, according to SCO, any AIX operating system code that IBM developed must be kept confidential, even if it contains nothing from SVR4. Symmetric Multiprocessing, or SMP, is a multiprocessor computer architecture where two or more identical processors are connected to a single shared main memory. ... Non-Uniform Memory Access or Non-Uniform Memory Architecture (NUMA) is a computer memory design used in multiprocessors, where the memory access time depends on the memory location relative to a processor. ... Read-copy-update is an operating system kernel technology for improving performance on computers with more than one CPU. The basic idea is as follows. ... Sequent Computer Systems, or Sequent, was a computer company that designed and manufactured multiprocessing computer systems. ... Silicon Graphics, Inc. ... XFS is a high-performance journaling file system created by Silicon Graphics for their IRIX operating system. ... JFS is a journaling filesystem created by IBM. It is available under an open source license. ... A journaling (or journalling) file system is a file system that logs changes to a journal (usually a circular log in a specially-allocated area) before actually writing them to the main file system. ... AT&T Inc. ... It has been suggested that Traditional Unix be merged into this article or section. ... Year 1985 (MCMLXXXV) was a common year starting on Tuesday (link displays 1985 Gregorian calendar). ... AIX (Advanced Interactive eXecutive) is a proprietary operating system developed by IBM based on UNIX System V. Before the product was ever marketed, the acronym AIX originally stood for Advanced IBM UNIX. AIX has pioneered numerous network operating system enhancements, introducing new innovations later adopted by Unix-like operating systems...


Free software/open source community reaction

The lawsuit caused moral indignation and outrage in the free software and open source communities, who consider SCO's claims to be without merit, even cynically dishonest. Open source advocates' arguments include: Clockwise from top: The logo of the GNU Project (the GNU head), the Linux kernel mascot Tux the Penguin, and the FreeBSD daemon Free software is a term coined by Richard Stallman and the Free Software Foundation[1] to refer to software that can be used, studied, and modified without... Open source refers to projects that are open to the public and which draw on other projects that are freely available to the general public. ... // The free software community is also called the open source community or the Linux community. ...

  • that SCOX does not even own the code in question. Scox has often called themselves "The owner of the UNIX operating system." But that claim is dubious at best. Scox certainly has no clear claim to SVR4 code.
  • 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;
  • 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 -- perhaps the common pieces of code had been legitimately copied from another open source operating system, perhaps a BSD-derived one, or one of the historical Unix versions previously released by SCO;
  • that Caldera Systems had begun as a Linux company before buying SCO's Unix business and certain assets related to it, and has added many Linux-like features to SCO UNIX, and any common code may have in fact been copied from Linux into SCO UNIX:
    • 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 SCO either to remove their product from the market until GPL'd code has been removed, or to release their source code under the GPL to their users;
  • 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 (as a judge found in USL v. BSDi);
  • 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.

SCO and its officers have been the subject of much criticism by the free software community, some of whom have stated that SCO's behavior may amount to illegal conduct. Indeed, SEC filings reveal that senior SCO executives dumped their personal holdings in SCO shortly after counter-suits were filed by IBM and Red Hat, lending credence to the idea that the lawsuit's primary purpose is manipulation of SCO's stock price. SCO Group's CEO Darl McBride has been the subject of particular criticism, because of his extreme statements to the press. Provenance is the origin or source from which anything comes. ... Berkeley Software Distribution (BSD, sometimes called Berkeley Unix) is the Unix derivative distributed by the University of California, Berkeley, starting in the 1970s. ... The SCO Group, Inc. ... The GNU logo The GNU General Public License (GNU GPL or simply GPL) is a widely-used free software license, originally written by Richard Stallman for the GNU project. ... A non-disclosure agreement (NDA), also called a confidential disclosure agreement (CDA), confidentiality agreement or secrecy agreement, is a legal contract between at least two parties which outlines confidential materials or knowledge the parties wish to share with one another for certain purposes, but wish to restrict from generalized use. ... A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information used by a business to obtain an advantage over competitors within the same industry or profession. ... This article is in need of attention. ... The GNU logo The GNU General Public License (GNU GPL or simply GPL) is a widely-used free software license, originally written by Richard Stallman for the GNU project. ... Darl McBride (b. ...


On March 10, 2003, the Open Source Initiative (OSI) released a position paper on the SCO vs IBM complaint, written by Eric S. Raymond, president of the OSI and author of The Cathedral and the Bazaar. March 10 is the 69th day of the year (70th in leap years) in the Gregorian calendar. ... 2003 (MMIII) was a common year starting on Wednesday of the Gregorian calendar. ... The Open Source Initiative is an organization dedicated to promoting open source software. ... Eric S. Raymond (FISL 6. ... The Cathedral and the Bazaar (abbreviated CatB) is an essay by Eric S. Raymond on software engineering methods, based on his observations of the Linux kernel development process and his experiences managing an open source project, fetchmail. ...


On May 16, 2003, Groklaw, a website founded by journalist/paralegal Pamela Jones began covering the SCO litigation on a daily basis, and became a voice for the community to express its views of SCO's claims, as well as being an experiment in applying Open Source principles to legal research. The SCO Group has singled the site out as a particular thorn in its side. May 16 is the 136th day of the year (137th in leap years) in the Gregorian calendar. ... 2003 (MMIII) was a common year starting on Wednesday of the Gregorian calendar. ... Groklaw is a blog that was started May 16, 2003 by paralegal Pamela Jones (posting as PJ) at Radio UserLand. ... This article does not cite its references or sources. ...


On May 30, 2003, Linus Torvalds, developer of the Linux kernel, was quoted by IDG.net as saying, regarding the case: is the 150th day of the year (151st in leap years) in the Gregorian calendar. ... 2003 (MMIII) was a common year starting on Wednesday of the Gregorian calendar. ... Linus Benedict Torvalds  ; born December 28, 1969 in Helsinki, Finland) is a Finnish software engineer best known for initiating the development of the Linux kernel. ...

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. For the 1998 Weird Al Yankovic song, see Jerry Springer (song). ...

The Inquirer reported on June 15, 2003, that an unnamed Linux kernel programmer has written to SCO, threatening action based on their distribution of a Linux distribution that, according to their own claims, contains code not licensed under the GPL. According to the letter reproduced there, the programmer claimed that SCO's doing so was an infringement of his own copyright. SCO's response to this letter is not known. is the 166th day of the year (167th in leap years) in the Gregorian calendar. ... 2003 (MMIII) was a common year starting on Wednesday of the Gregorian calendar. ...


In an interview on June 23, 2003, Torvalds responded to SCO's allegation that Linux development had no process for vetting kernel contributions: is the 174th day of the year (175th in leap years) in the Gregorian calendar. ... 2003 (MMIII) was a common year starting on Wednesday of the Gregorian calendar. ...

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, 2003, 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: is the 176th day of the year (177th in leap years) in the Gregorian calendar. ... 2003 (MMIII) was a common year starting on Wednesday of the Gregorian calendar. ... Eben Moglen is a professor of law and legal history at Columbia University, and is the founder, Director-Counsel and Chairman of Software Freedom Law Center, whose client list includes numerous pro bono clients, such as the Free Software Foundation. ... The Free Software Foundation (FSF) is a non-profit corporation founded in October 1985 by Richard Stallman to support the free software movement (free as in freedom), and in particular the GNU project. ...

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, 2003, the Open Source Development Labs released a position paper on the ongoing conflict [8], written by the FSF's Eben Moglen. is the 212th day of the year (213th in leap years) in the Gregorian calendar. ... 2003 (MMIII) was a common year starting on Wednesday of the Gregorian calendar. ... The Open Source Development Lab (OSDL) is a non-profit organization supported by a global consortium dedicated to advancement of Linux, an operating system. ...


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: The Free Software Foundation (FSF) is a non-profit corporation founded in October 1985 by Richard Stallman to support the free software movement (free as in freedom), and in particular the GNU project. ...

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.

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, 2003 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." May 14 is the 134th day of the year (135th in leap years) in the Gregorian calendar. ... 2003 (MMIII) was a common year starting on Wednesday of the Gregorian calendar. ...


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.

The GPL and the US Constitution

During a certain period of its litigation against IBM, SCO alleged that the GPL violates the United States Constitution. This allegation was dropped however from SCO's claims in April 2004 in "SCO's Answer to IBM's Second Amended Counterclaims", as can be seen on Groklaw [9]. The United States Constitution is the supreme law of the United States of America. ...


SCO originally based its views on the following considerations.


Section 8 of Article One of the United States Constitution states that Article One of the United States Constitution establishes the legislative branch of government, Congress, which includes the House of Representatives and the Senate. ... The United States Constitution is the supreme law of the United States of America. ...

[Congress shall have power] to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. Type Bicameral Houses Senate House of Representatives United States Senate Majority Leader Harry Reid, D since January 4, 2007 Speaker of the House Nancy Pelosi, D since January 4, 2007 Members 535 plus 4 Delegates and 1 Resident Commissioner Political groups (as of November 7, 2006 elections) Democratic Party Republican...

Since the GNU General Public License for the most part disclaims exclusive rights, SCO claimed that its use violates this clause. SCO's argument asks the court to limit both Congress's discretion in implementing the copyright clause, which the Supreme court refused to do in Eldred v. Ashcroft, and copyright holders' discretion over the enjoyment of their exclusive rights. The GPL specifically prohibits, in section 7, distribution of software in jurisdictions where the laws are incompatible with the GPL, so a ruling that upheld SCO's constitutional argument would prevent distribution of Linux (and other copylefted software) in the United States. Eldred v. ...


Other commentators disagree however. One such commentator, Tom Carey, partner and chairman of a Boston intellectual property law firm, even went so far as to say "Attacks on the GPL are far-fetched and a little bit desperate." (see [10]). Stacey Quandt, principal analyst at Quandt Analytics, remarked, "SCO's prior claim that the GPL was unconstitutional was equivalent to Microsoft's claims about open source being un-American—totally ridiculous." (see [11]).


Professor Eben Moglen, on leave from the Columbia University law faculty for the year 2006-2007, speaking as counsel to the Free Software Foundation (FSF) who is responsible for drafting the GPL, also takes this view. He says, "I believe the constitutionality attack on the GPL is not a tenable legal argument but is rather a public relations argument." In a talk at Harvard in February, he addressed the issue of constitutionality by referring to Congress' recent extension of copyright term limits. "It turns out that there's no such thing as an unconstitutional copyright rule," he said, "if Congress passes it, and if it observes the distinction between expression and idea." (see [12])


If dropping the allegation that the GPL is unconstitutional from SCO's actual filed complaints is any indication, SCO group (or at least its legal counsel) agrees that having the GPL found to be in violation of the US constitution is not a realistic prospect.


Novell enters the controversy

Main article: SCO v. Novell

Novell entered the controversy by publishing on May 28, 2003, 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." After The SCO Group initiated their Linux campaign, they made several statements that they were the owners of Unix, probably meaning (though never explicitly said) that they were the owners of the copyrights of the original ATT source code and derivatives. ... Novell Inc. ... May 28 is the 148th day of the year (149th in leap years) in the Gregorian calendar. ... 2003 (MMIII) was a common year starting on Wednesday of the Gregorian calendar. ... The SCO Group, Inc. ... Filiation of Unix and Unix-like systems Unix (officially trademarked as UNIX®) is a computer operating system originally developed in the 1960s and 1970s by a group of AT&T employees at Bell Labs including Ken Thompson, Dennis Ritchie and Douglas McIlroy. ... Year 1995 (MCMXCV) was a common year starting on Sunday (link will display full 1995 Gregorian calendar). ...


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 as part of a press release on December 22, 2003, 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. December 22 is the 356th day of the year (357th in leap years) in the Gregorian calendar. ... 2003 (MMIII) was a common year starting on Wednesday of the Gregorian calendar. ...


SCO was quick to dismiss Novell's claims. The same day, during a conference call to discuss SCO's quarterly financial results, SCO CEO Darl McBride said "We see this as a fraudulent filing of copyright notices ... and we'll take the appropriate measures as necessary with our legal team." SCO made good on this threat on January 20, 2004, when it filed SCO v. Novell. January 20 is the 20th day of the year in the Gregorian calendar. ... shelby was here 2004 (MMIV) was a leap year starting on Thursday of the Gregorian calendar. ... After The SCO Group initiated their Linux campaign, they made several statements that they were the owners of Unix, probably meaning (though never explicitly said) that they were the owners of the copyrights of the original ATT source code and derivatives. ...


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. Fear, uncertainty, and doubt (FUD) is a sales or marketing strategy of disseminating negative (and vague) information on a competitors product. ... Microsoft Corporation, (NASDAQ: MSFT, HKSE: 4338) is a multinational computer technology corporation with global annual revenue of US$44. ... Quid pro quo (Latin for something for something [1]) indicates a more-or-less equal exchange or substitution of goods or services. ...


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 claiming 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. A similar injunction was sought around the same time in Poland. is the 150th day of the year (151st in leap years) in the Gregorian calendar. ... 2003 (MMIII) was a common year starting on Wednesday of the Gregorian calendar. ... This article is about the city in Germany. ... “EUR” redirects here. ...


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." July 23 is the 204th day (205th in leap years) of the year in the Gregorian calendar, with 161 days remaining. ... The ACCC Logo The Australian Competition and Consumer Commission (ACCC) is an independent Australian commonwealth government authority established in 1995 from the amalgamation of the Australian Trade Practices Commission (TPC) and the Prices Surveillance Authority, to protect consumer rights, business rights and obligations, perform industry regulation and price monitoring and...


SCO Group then filed subpoenas for Richard Stallman and Linus Torvalds on November 13, 2003. [13] A subpoena is a command to appear at a certain time and place to give testimony upon a certain matter. ... Richard Matthew Stallman (often abbreviated as RMS) (born March 16, 1953) is a software freedom activist, hacker, and software developer. ... Linus Benedict Torvalds  ; born December 28, 1969 in Helsinki, Finland) is a Finnish software engineer best known for initiating the development of the Linux kernel. ... is the 317th day of the year (318th in leap years) in the Gregorian calendar. ... 2003 (MMIII) was a common year starting on Wednesday of the Gregorian calendar. ...


IBM's AIX license

Reuters reported that the SCO Group intended to revoke IBM's license to use UNIX code in their AIX operating system on Friday, June 13, 2003 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, 2003, CNET News.com reported that SCO had announced it had terminated IBM's license. 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. IBM's continued distribution of AIX is the basis of SCO's copyright claim. is the 164th day of the year (165th in leap years) in the Gregorian calendar. ... 2003 (MMIII) was a common year starting on Wednesday of the Gregorian calendar. ... is the 167th day of the year (168th in leap years) in the Gregorian calendar. ... 2003 (MMIII) was a common year starting on Wednesday of the Gregorian calendar. ...


IBM counterclaims against SCO

On August 6, 2003, IBM filed its counterclaims against SCO. [14] [15] It made 10 counterclaims: is the 218th day of the year (219th in leap years) in the Gregorian calendar. ... 2003 (MMIII) was a common year starting on Wednesday of the Gregorian calendar. ...

In response to these counterclaims, SCO has asserted that the GPL is unenforceable, void, and violates the United States Constitution. If these claims are true, then the GPL'd applications that SCO continues to distribute (like Samba) are being distributed without the permission of the copyright owners of those applications (since the permission was the GPL itself), which would be illegal. Thus some speculate that, in order to remain legally consistent, SCO will claim that software that has been GPL'd is actually in the public domain. Breach of contract is a legal concept in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other partys performance. ... The Lanham (Trademark) Act (title 15, chapter 22 of the United States Code) is a piece of legislation that contains the federal statutes of trademark law in the United States. ... Antitrust is also the name for a movie, see Antitrust (movie) Antitrust or competition laws legislate against trade practices that undermine competitiveness or are considered to be unfair. ... The GNU logo The GNU General Public License (GNU GPL or simply GPL) is a widely-used free software license, originally written by Richard Stallman for the GNU project. ... The examples and perspective in this article or section may not represent a worldwide view. ... The United States Constitution is the supreme law of the United States of America. ... Samba logo. ... The public domain comprises the body of all creative works and other knowledge—writing, artwork, music, science, inventions, and others—in which no person or organization has any proprietary interest. ...


On September 25, 2003 IBM amended its counterclaims bringing the total number of counterclaims to 13. The new counterclaims are: is the 268th day of the year (269th in leap years) in the Gregorian calendar. ... 2003 (MMIII) was a common year starting on Wednesday of the Gregorian calendar. ...

  • Copyright infringement
    • This counterclaim involves an 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.[16]
  • Promissory estoppel
  • Declaratory judgment

On March 29, 2004 IBM amended its counterclaims again. It dropped one of the patent infringement claims, but added 2 new Declaratory judgments of Noninfringement of Copyrights. One of these seeks a declaration that IBM's AIX-related activities do not infringe any of SCO's copyrights. The other one seeks a similar declaration about IBM's Linux-related activities. This article or section does not adequately cite its references or sources. ... It has been suggested that this article or section be merged with Estoppel (English law). ... A declaratory judgment is a judgment of a court which declares what rights each party in a dispute should have, but does not order any action or result in any legal damages. ... March 29 is the 88th day of the year in the Gregorian calendar (89th in leap years). ... shelby was here 2004 (MMIV) was a leap year starting on Thursday of the Gregorian calendar. ...


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 SVRX is a derivative work of SVRX (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. In law, discovery is the pre-trial phase in a lawsuit in which each party through the law of civil procedure can request documents and other evidence from other parties or can compel the production of evidence by using a subpoena or through other discovery devices, such as requests for... In law, a deposition is evidence given under oath and recorded for use in court at a later date. ...


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. [17] PDF December 5 is the 339th day (340th in leap years) of the year in the Gregorian calendar. ... 2003 (MMIII) was a common year starting on Wednesday of the Gregorian calendar. ...


On June 28, 2006 Judge Brooke Wells granted IBM's motion to strike most of SCO's evidence, citing in part SCO's inability to provide the specificity required by the court: is the 179th day of the year (180th in leap years) in the Gregorian calendar. ... For the Manfred Mann album, see 2006 (album). ...

In December 2003, near the beginning of this case, the court ordered SCO to, "identify and state with specificity the source code(s) that SCO is claiming form the basis of their action against IBM." Even if SCO lacked the code behind methods and concepts at this early stage, SCO could have and should have, at least articulated which methods and concepts formed "the basis of their action against IBM." At a minimum, SCO should have identified the code behind their method and concepts in the final submission pursuant to this original order entered in December 2003 and Judge Kimball’s order entered in July 2005.

[18] (paragraph 30)

SCO appealed to Judge Kimball and asked for a de novo review of Judge Wells' order.[19] On November 29, 2006 Judge Dale Kimball affirmed Judge Wells' order in its entirety . [20] In law, the expression trial de novo literally means new trial. It is most often used in certain legal systems that provide for one form of trial, then another if a party remains unsatisfied with the decision. ... November 29 is the 333rd day of the year (334th in leap years) in the Gregorian calendar. ... For the Manfred Mann album, see 2006 (album). ...


Examples of controversial code revealed

is the 185th day of the year (186th in leap years) in the Gregorian calendar. ... 2003 (MMIII) was a common year starting on Wednesday of the Gregorian calendar. ... Dennis Ritchie Dennis MacAlistair Ritchie (born September 9, 1941) is a computer scientist notable for his influence on ALTRAN, B, BCPL, C, Multics, and Unix. ... Ken Thompson Kenneth Thompson (born February 4, 1943) is a pioneer of computer science notable for his contributions to the development of the C programming language and the UNIX operating system. ... The BSD license is the license agreement that the BSD software (largely, a version of UNIX) is distributed under. ...

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. [21] [22] Novell Inc. ... Filiation of Unix and Unix-like systems Unix (officially trademarked as UNIX®) is a computer operating system originally developed in the 1960s and 1970s by a group of AT&T employees at Bell Labs including Ken Thompson, Dennis Ritchie and Douglas McIlroy. ...


SCO Group claimed in a press release to have sent DMCA notification letters alleging copyright infringement [23][24] 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. The SCO Group, Inc. ... The Digital Millennium Copyright Act (DMCA) is a controversial United States copyright law which criminalizes production and dissemination of technology that can circumvent measures taken to protect copyright, not merely infringement of copyright itself, and heightens the penalties for copyright infringement on the Internet. ... Groklaw is a blog that was started May 16, 2003 by paralegal Pamela Jones (posting as PJ) at Radio UserLand. ...


See also

  • Groklaw is the most detailed source of information on the progress of the case.
    • The following page on Groklaw is a comprehensive list of unsealed documents as of October 10, 2006 [25]

Groklaw is a blog that was started May 16, 2003 by paralegal Pamela Jones (posting as PJ) at Radio UserLand. ... October 10 is the 283rd day of the year (284th in leap years). ... For the Manfred Mann album, see 2006 (album). ...

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