Res Ipsa Loquitur

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SCO has filed its quarterly report
with the Securities and Exchange Commission, for the quarter ending April 30, 2003, and it's most revealing.

Not only does SCO's most recent 10Q report document lots of interesting details over the deal with Microsoft, it also effectively make the claim that:
The SCO Group, and only The SCO Group, has *sole* right to sub-license any and all source code from all of the folowing UNIXs; SCO UnixWare and SCO OpenServer, Sun’s Solaris, IBM’s AIX, SGI’s IRIX, HP’s UX, Fujitsu’s ICL DRS/NX, Siemens’ SINIX, Data General’s DG-UX, and Sequent’s DYNIX/Ptx.

Megalo-FUDding-mania. Once those vendors get wind of this claim, they will go absolutely nuclear.

The line of argument that Darl MCBride and The SCO Group is using to claim these rights was quashed by the outcome of the USL vs. BSDI lawsuit

The SCO Group cannot have any effective claim to the UNIX source it did not directly write or directly purchase.

What proportion of so called SystemV/Unixware source was put in to Linux at the direction of Caldera?
See "Linux and UNIX Are Coming Together : A Caldera Business Overview white paper"

The March 2001 paper describes the intergration of Caldera Linux and Unix products. What amount of source code was "shared" between both Linux and Unixware to insure platform compatablity?

In respects to the lawsiuit against IBM, what sbout both Caldera's and Old SCO's particpation in the Trillian projects...

So, how did Linux become so capable of scaling beyond the heights of the old UNIXs. More importantly, who helped put what where?

As with the marketing of cars and TVs, it is the vendor's high end leading edge models which sells the standard models, from which most of the sales and profit is made. For the enterprise server market today, that high end is multi-headed 64bit SMP ( shared memory multiprocessor ) systems, never mind the fact that single 32bit processors provide more than enough power to do most jobs. For all intents and purposes, it is the ability of the core OS to scale on 64Bit SMP systems that defines "enterprise scalability". Other enterprise feature are effectively just addons, which in the case of Linux, have been freely contributed from many vendors and developers.

Since version 2.0, Linux was more than just a 32bit x86 operating system. With the insistence and assistance of John "Maddog" Hall, Linux was already ported to the 64Bit Alpha processor, which delivered great performance and stability. Just like the traditional AT&T UNIX source base, the ownership of the Alpha chipset passed though many hands, suffering the same fate of a thousand cutbacks. Even Alpha's "native" OS, VMS, has been ported to Itanium by HP/Compaq.

Since 1997 Intel has been promoting the Itanium line as the inevitable successor for every other server processor on the market. Despite the early vaporware status, Intel has been very successful, at least in terms of marketing. With the exception of it's mainframes systems, even IBM ships Itanium systems that directly compete with their own Power processors.

For what The SCO Group has to offer with SCO Unixware 7,the Itanium line is the only 64Bit option. The problem for The SCO Group is that modern Linux can compete so well in that same market, that the value of Unixware is rapid deteriorating to a historical curiosity. I suspect that The SCO Group ( at that time called Caldera ) executives were well aware of this before they acquired the server part of Old SCO in August 2000, or they would have known, if they spoken to the right executives and technical staff.

So how did Linux get to scale on Itanium? The SCO Group would have you believe it was all IBM's doing, which isn't as interesting as the real story. The web of history weaves to encircle and entangle a much more diverse group of conspirators, including many of The SCO Group, Caldera and old SCO own former executives and other employees.

In October 1998, IBM, Old SCO and Sequent teamed up to collectively develop parts of Unixware and AIX into scalable 64bit ready ports for IBM's Power processors and Intel's AI64, or Itanium, under the banner of Project Monterey. But by then, it was already too late.

In February 1998, well before even the first prototype IA-64 chips were available, a skunkworks team at HP, with some assistance from Intel, began the work toward porting Linux to IA-64. By October 1998,around the same time that IBM, Old SCO and Sequent had finished negotiations, HP had completed the build toolchain. By January 1999, the Linux kernel was booting on an IA-64 processor simulator, months before the actual Itanium processor was available. In March 1999, at Intel, Linux was booting on the actual Intel Itanium processor. In April 1999, CERN joined the projects for the port of the Gnu C library and VA Linux Systems joined the project and rapidly improved the stability and performance.

In May 1999, the Trillian Project is foundered and HP, VA Linux and Intel collectively provided their source patches to the Linux kernel for the Itanium port under the GPL license.

A bootable kernel alone however does not make an OS make. HP supplied the patches for the toolchain ( initial GCC C/C++ compiler, gas Assembler , ld Linker ). Intel supplied the test platforms, apache, EFI, FPSWA, SCSI, SMP, libm ( the old Linux C libraries ). VA Linux ported E, E-Term, XFree86, utilities & Term libs, bootloader, libs, and More SMP patches. CERN ported glibc ( the "new" Linux C libraries ).

By the time August 1999 rolls around, a surprising array of vendors came along and added ports of software to the stone soup. Cygnus added the GNUPro Toolkit ( supported gcc, g++, gdb). SGI added their own compiler, kdb ( kernel debugger ) and OpenGL. SuSE added KDE, and created an IA-64 distribution. RedHat added GNOME, more commands and also created an IA-64 distribution.

Now it's at this point where things become very interesting. The Trillian Project, providing free Linux on the IA-64 platform is effectively already in direct competition with Project Monterey. This makes the next three contributers somewhat surprising.

IBM contributed performance tools, measurement and analysis. It should be noted that these do not add enterprise functionality to the kernel, they just allow for the tuning of overall performance.

Caldera, yes, the same Caldera that acquired the server part of Old SCO in August 2000 and renamed itself The SCO Group in 2003, created an IA-64 distribution.

Lastly TurboLinux , like IBM, added performance counters and also created a distribution. Whats so special about TurboLinux? In October 1999 Old SCO entered into strategic agreement with TurboLinux to develop services for TurboLinux's TurboCluster Server and provide Linux Professional Services for TurboLinux customers.Old SCO also made a sizable investment in TurboLinux, Caldera and LinuxMall. In Old SCO's words, to "engage a wider Open Source community and reflects our continuing support of Open Source and UNIX on Intel."

In February 2000, the Trillian Press Conference, disclosed all this to the public.

The development effort was split into two major sections, the IA-64 Linux Project which concentrated on the Linux Itanium ports

and the Linux Scalability Effort, which concentrated on the general scalable enterprise elements."

Why would SCO or even IBM invest in a project and companies in direct competition to Project Monterey? One obvious conclusion is that both were hedging their bets against a potential failure of Project Monterey and Unixware on Itanium. This may explain why even some of SCO's people, including at least one from the "Core OS Development team" became directly involved with both the Linux-IA64 and the Linux scalability project. In fact, both Old SCO and Caldera employees played a major part in assisting and contributing to the success of both projects.

Developers such as JunNakajima ( at that time Email: jun@sco.com, Phone: 908-790-2352 Fax: 908-790-2426 ) of SCO's Core OS Development team, SCO/Murray Hill, NJ. Jun U Nakajima, as well as other SCO and Caldera employees, contributed advice and patches to the Linux kernel, directly and though the Mailing lists of both the Linux-IA64 and the Linux scalability project.

Then compare this post of Jun's including the comments

To this actual partthe Linux kernel

And this translated commentDr. Stefan Hildemann who claims to have had a chance to see SCO's code show without having to sign the NDA

Jun U Nakajima was aware of NDA ( Non-Disclosure-Agreement ) issues, as this threadto Usenet proves....

Note that in the same thread, Jun admits that he was using stable 4-way SMP systems Linux and has seen a demo 8-way system in the middle of the year 2000.

Many SCO and Caldera employees directly contributed to the development of enterprise scale Linux, before, during and after Caldera made it's purchase of SCO's Unix division.

Jun U Nakajima sometime in 2001, went to work for Intel, and even today he is successfully performing the same job he did when he was employed by Old SCO and then Caldera, improving the scalability of Linux on the new Intel processor platforms.In 2002, Jun U Nakajima and Venkatesh Pallipadi, also from Intel, presented a paper to a USENIX conference.

As with all the Linux kernel work, the result of all the above work has been incorporated into the main Linux branch at the discretion of Linus Torvalds.

The SCO Group claim that their current case against IBM is based upon breach of trade secret though "technological transfer". Well, Old SCO and the current SCO group are as much to blame for the loss of secrecy and the development of the competing Linux technology. The VPs at The SCO Group should know about the Trillian Project and the contributions of their own employees. Maybe one of them does...

Opinder Bawa, Senior Vice President, Engineering and Global Services at The SCO Group, sold all his stock last week. As Vice President of Engineering, Opinder Bawa is in a better position than most to know who put what where.

I am not a lawyer, but even I can see that The SCO Group has put itself into an intractable situation, any judge will look at evidence from the above and laugh the SCO group out of court.

It's about time to reexamine the recent claims of The SCO group and call in the lawyers and maybe the authorities.

Finally

In 1994 a group of Novell alumni formed Caldera Systems International with the backing of Novell's founder Ray Noorda. It is Caldera systems which purchased the "rights" from Novell for SCO and became the current SCO Group. Caldera have since 1994, before the OLD SCO instigated the Project Monterey deal with IBM in 1998, released all it's Linux kernel code and other projects and contibutions under the GPL licenses. The GPL licenses are an effective copyright contract strictly controling the terms and conditions of distribution of both binaries and source. Caldera and therefore new SCO group have been collectively developing and selling under the terms of the GPL "contract" prior to the OLD SCO deal with IBM.

the SCO Group has knowingly sold and distributed the GPL licensed Linux kernel and other components, it must by the terms of the GPL license, provide all those who receive the code from them an implicit license to use any intellectual property, patents or trade secrets which SCO owns and is used by the GPL'ed source code. That implicit license to that SCO intellectual property is also granted to anybody who subsequently receives the GPL source.

The GPL only grants the right, for reasons of intellectual property infringement or contractual obligations, to stop distributing the GPL'e binaries and source code if the conditions are imposed upon you by a third party. Since SCO claims ownership the intellectual property in question, it must grant all subsequent recipients of the GPL licensed source code SCO has distributed and any GPL'ed derivative, the same implicit licence and right to SCO's intellectual property the code imposes upon.

SCO has acknowledged deals with Suse and Lindows to distribute SCO's intellectual property in GPL'ed Linux, but the GPL license does not grant anyone or any organization the right to append extra terms and conditions upon the recipients of the GPL licensed source code.

It is very easy to effectively fold the current development branches of the Linux kernel and any other GPL'ed code back into SCO's distributed GPL'ed sources. This would grant the same implicit license for the infringed SCO intellectual property to the all the current development.

Since the SCO Group have admitted that their latest amendment for the deal with Novell does not cover the old Unix patents, what vector is left to legally threaten Linux developers, vendors and users?

My eyes are now bleeding.

Whatsa matta for you?

I suppose you want me to fix his HTML links, huh Keith?

SCO presumably owns rights to the old ATT UNIX code, though Novell still claims to own relevant patents and the actual copyright. And the Open Group actually owns the name UNIX.

I'm still bothered by SCO's insistence that they own all things Unix. Their latest claim is that IBM inserted the Read-Copy update for memory management into the Linux kernel tree, without SCO's blessing. That is true, but this technology was developed by Sequent for use in its version of Unix, called Dynix. IBM purchased Sequent and, eventually, released this code to the Linux community. So, SCO is effectively claiming intellectual property rights over Dynix and, consequently, all other Unix variants, though the code was not developed by them. SCO does own the source code to Unix System V, but it seems a stretch to assume that they "own" all distribution rights to AIX, Solaris, Tru64, HP-UX, Dynix, and all other derivatives.

It's also interesting that SCO claims on their web site "SCO is the owner of the UNIX operating system, as well as all of the UNIX contracts, claims and copyrights necessary to conduct that business,"..."None of the litigation we are currently involved with asserts claims based on copyrights. Because others have called into question SCO's ownership of the UNIX and UnixWare copyrights, we are satisfied that we have now proven without a doubt that SCO owns those copyrights." See http://ir.sco.com/ReleaseDetail.cfm?ReleaseID=110907

They mention that they "own...UNIX" and "all..copyrights." Contrast this with statements from the Open Group. The Open Group is a consortium who owns the "UNIX" trademark, see http://www.opennc.org/trademarks.htm This group owns the standards and criteria used to certify an operating system as UNIX(TM). Novell transferred the UNIX trademark and specification to the Open Group, while also transferring the System V source code to SCO. See http://www.unix-systems.org/backgrounder.html

SCO owns the source code to System V, but not the specification of what UNIX(TM) is. In fact, the Open Group site states that they own the trademark to UNIXWARE(TM), as it was transferred to them from SCO. This may not be applicable to any of this, but it's interesting nonetheless.

My main concern is still that SCO is claiming ownership of more than it really does. I'm really curious what IBM will do here. Big Blue stated, "IBM will continue to ship, support and develop AIX, which represents years of IBM innovation, hundreds of millions of dollars of investment and many patents..." See http://news.com.com/2100-1016_3-1017719.html?tag=fd_lede2_hed
It makes me wonder IBM will pull out their patents which (if memory serves) they more of than any other company, and put the smack down on SCO. It'll be interesting to watch.

That all looked like ascnoiwah aosdnfas aosiutow owiuthe to me.

Bob, it looked to me like SCO's basically claiming that their software agreement with IBM prohibited derivative use of System V code without their permission...but IBM used it anyway in its development of Linux in breach of their contract.

Now, seems to me IBM must've at least believed SCO had ownership rights to the code, else why sign the agreement & pony up the bucks for the use?

As for the conflicting claims over who owns what, it may be helpful to look at property rights as a bundle of sticks representing the various rights of ownership. (Stolen from my property law professor) If you own all the rights to a piece of real estate, for example, you can sell the rights to the oil & gas on your property without transferring your ownership rights to the property itself. So I could see where it would be possible for one company to own a software's trademark rights while another owned the rights to the code itself, and so on. I don't know enough about software rights, trademarks & copyrights to say whether that's a valid analogy, but it smells correct.

BTW, Bob knows this, but for the rest of you, I'm not bashing Linux in any way, I don't know squat about Linux, so I don't have an opinion on it one way or another.

Great discussion guys, thanks! Keep it going.

All the detail is nice but not very important...

The word derivitive is all over the license agreement IBM signed with ATT.

ATT started it's corporate life as Bell (Alexander Gramm Bell) and the company was involved in intellectual property litigation at birth. If there was ever a company that knows how to tie a partner up with that kind of agreement, they's the ones...

... so, derivitive means what it means and there is damn near nothing in AIX that is not derivitive from System V. The engineers at IBM who did the Linux project had all spent years immersed in the AIX kernel and cannot claim "clean room" design of the parrallel features included in linux so they cannot disprove a claim of transfer of proprietary code and function into linux.

Honestly, no one can dispute the paternity of System V to all Un*x variants. This is an argument between religious factions... The Open Source folks are followers of Marx and the proprietary OS folks follow Ann Rand...

Open Source dude...
"Hey man... let's get together and write an OS... I have this cool code I found that does SMP (Symmetrical Multi-Processing, dude) and we need it for the cause and we don't believe in private property anyway..."

SCO...
"You are NOT entitled to the sweat off of someone's brow that I bought the rights to..."

... and all the arguments I hear are from geeks like me, thinking like geeks... this will be decided by shysters, not geeks and that is the mind-set required to understand the issues...

"Hold on boys, it's gonna be a bumpy ride..."