Why did Microsoft and Sun support SCO?
Jun. 05, 2007
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Back in the beginning of SCO's all-out assault on Linux and IBM, the Unix company received a much needed financial boost to its lawsuit plans with two major contracts. These deals with Microsoft and Sun brought SCO $26.5 million. This money, in turn, fueled SCO's lawsuits.
At the time, many critics of SCO wondered what in the world Sun and Microsoft could have been buying from SCO. Most people thought the answer was that they were buying an attack on a rival company, IBM, and a rival operating system, Linux.
Now, as a byproduct of SCO v. Novell -- the case over who really owns Unix's IP (intellectual property) -- and thanks to Groklaw, we now know what Sun was buying from SCO (PDF download). In part, it does seem to be an attack on Linux; but that wasn't all.
According to the court exhibit, Sun bought a "right to use license" (RTU license) for its commercial Linux end-users. In addition, Sun was buying "a UnixWare source code license to developers," and both licenses "contained a covenant not to sue, which provided that the licensee would not be exposed to liability for the use of SCO's intellectual property in Linux."
Nowhere does the exhibit explain in any detail exactly what SCO IP was hidden within Linux. Does that sound to you like the sort of vague patent claims made by Microsoft in regards to its recent patent deals with Novell and with Xandros? It does to me.
What makes this even odder is that, according to the exhibit, Microsoft and Sun also paid for UnixWare rights, and incidental rights to the older UNIX System V source code. Since they had paid for the rights to use Unix, why should they also be paying SCO not to sue them for the use of Linux?
My conclusion, then, as now, is that both companies were paying for SCO to attack IBM and Linux. It's difficult for me to see it in any other light. Both companies, after all, already had licenses to use SCO's Unix and IP.
In addition, though, this document supports the contention by Jonathan Schwartz -- then Sun VP of software and today Sun's president and CEO -- in an 2003 eWEEK interview that Sun had bought "rights equivalent to ownership" of Unix.
Another day, another knockout punch aims at SCO
Dec. 05, 2006
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Last week saw the end of most of The SCO Group's claims of IBM contributing Unix code to Linux. Now, Novell has filed a motion that undercuts all of SCO's contract claims against IBM, based on a "silver bullet" clause in the original sale of Unix to SCO.
In its latest legal move against SCO, Novell on Dec. 1 filed for partial summary judgment against SCO in its own case. In this motion, Novell is asking the U.S. District Court to rule that the Unix APA (Asset Purchase Agreement), which sold Unix from Novell to SCO, gave Novell the right to waive SCO's contract claims.
Novell had long claimed that it never sold Unix's IP (intellectual property) rights to SCO. This new motion, however, isn't connected with those claims.
In the APA, Novell has what Mark Radcliffe, co-chair of the Technology and Sourcing Practice Group at the law firm DLA Piper, called, when Novell first made these claims, a "silver bullet" provision under the APA to block SCO's actions under these licenses. "This provision permits Novell to amend, supplement, modify or waive provisions of the Unix licenses sold to SCO," Radcliffe said. "Novell also retained the unusual right to require SCO to follow its directions to amend, supplement, modify or waive these licenses and, if SCO does not comply, Novell can do so on SCO's behalf."
In the memo in support of the motion (PDF Link), Novell puts it bluntly: "Novell's motion presents a single issue: whether the express terms of a 1995 contract authorize Novell to direct SCO to waive its purported legal claims for alleged breaches of SVRX license agreements with IBM and with Sequent, and to take action on SCO's behalf when SCO refuses to so waive, where the plain language of the 1995 contract gives Novell 'at its sole discretion and direction' the right to take such action concerning 'any SVRX License.'"
While unusual, the APA appears to be quite clear on this point. According to Section 4.16 SVRX Licenses, sub-section b of the APA, SCO "shall not have the authority to, amend, modify or waive any right under or assign any SVRX License without the prior written consent of [Novell.]"
If the court agrees with Novell's logic, this would knock-out all of SCO's contract claims.