SCO's suit not all that simple

Salt Lake Tribune ^ | 02-07-2004 | Bob Mims

[drlevy88]

But even that hypothetical encumbrance is a bunch of horse hooey. Why climb through the window when I can walk out the door?

[Cboldt]

But even that hypothetical encumbrance is a bunch of horse hooey. Why climb through the window when I can walk out the door?

Hmmm, a mystery. Maybe to set up a mark?

[drlevy88]

At the very worst, IBM will only be liable if SCO can show that the JFS that IBM used in Linux contains code that was in SysV before IBM ported JFS to SysV. I sincerely doubt that IBM would have ever been so stupid as to permit a single line of pre-existing SysV code to get lifted into Linux.

[cc2k]

Bush2000 wrote:

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Adding the code to AIX made it a part of the "SOFTWARE PRODUCT (System V)".

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OK, the term "SOFTWARE PRODUCT" has a very specific definition in these agreements. That's why the agreements list that term, "SOFTWARE PRODUCT" in the definition section of the SOFTWARE AGREEMENT. Quoting from the "Definitions" section of the "SOFTWARE AGREEMENT":

   1.04 SOFTWARE PRODUCT means materials such as COMPUTER PROGRAMS, information used or interpreted by COMPUTER PROGRAMS and documentation relating to the use of COMPUTER PROGRAMS. Materials avaliable from AT&T for a specific SOFTWARE PRODUCT are listed in the Schedule for such SOFTWARE PRODUCT.

How could something that IBM added to AIX in 1999 or 2000 was "made available from AT&T" and "listed in the Schedule" of the agreement dated February 1, 1985?

Bush2000 wrote:

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Read the contract. It's in black-and-white. I'm getting tired of pointing this out to you guys.

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I have read all of the agreements. Have you?

Bush2000 wrote:

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No, wrong. IBM was contractually bound. It gave up its rights to sell and/or distribute the code when it made it part of AIX.

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So, if you allege that IBM gave up these rights, what did they get from AT&T in exchange for giving up their rights? You do understand that a contract is not valid if there isn't "mutuality of obligation," don't you. That means that when one party grants some consideration to the other party, the other party mutually exchanges something of value for those considerations. Without that, the alleged "contract" is probably invalid.

Another contract law concept that might apply here is "meeting of the minds." Basically, that means that both parties to the contract should have the same understanding of the terms of the contract. The SCO Group is in serious trouble on this front as well. If O.L. Wilson or any of the other AT&T representatives that were involved in this contract come forward and say that their understanding of the contracts match IBM's position, then the "meeting of the minds" supports IBM's position. Unless The SCO Group cna point to some document or meeting where IBM actually agreed to their new "interpretation" of the contracts, they will be stuck with IBM's (and AT&T's and Novell's) interpretations.

There's pretty strong evidence from Novell that the understanding was what IBM is presenting. This is important because Novell bought these contracts and these rights from AT&T. Novell has stated in a letter dated October 7, 2003 that The SCO Group's interpretation is wrong, and that, "the focus of the Agreements was on protecting AT&T Code, not on restricting IBM Code just because it happened to be combined with AT&T Code in a modification or derivative work." They go on to say, "Any other result would defy logic as well as the intent of the parties."

Now, I'm not going to argue the merits of Novells claims to be able to exercise rights or waive rights on behalf of The SCO Group. However, The SCO Group traces the rights they are claiming back through Novell to AT&T. If Novell representatives come to IBM's trial and swear that they didn't purchase the rights that The SCO Group is claiming from AT&T, that's going to hurt The SCO Group's case.

Because if Novell didn't buy these alleged rights from AT&T, they couldn't have sold these alleged rights to the Santa Cruz Operation, and Caldera (now The SCO Group) couldn't have purchased them from the Santa Cruz Operation if the Santa Cruz Operation didn't have them. If Novell's understanding of the contracts matches IBM's understanding, then for at least the first 10 years of the contracts, the contracts meant what IBM says they meant. The "meeting of the minds" is in IBM's favor. The SCO Group would have to point to some agreement after the Novell sale of UNIX assets to the Santa Cruz Operation as the source of their alleged rights.

Bush2000 wrote:

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Yeah, it could argue that the code was taken from OS/2 and added to Linux -- but, realistically, when you look at the JFS code, you're going to find that it's pretty much line-by-line the same as the code added to AIX; therefore, it's impossible to distinguish whether it came from AIX or OS/2.

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Actually, if you look at The SCO Groups proposed second amended complaint, on page 26, you'll see this table which details alleged JFS contributions by IBM from AIX:

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Table A

AIX 9922A_43NIA File	Line #s	Linux 2.2.12 ref/File	Line #s
usr/include/jfs/inode.h	16-37	include/linux/jfs/ref/jfs_inode.h	84-95, 126-138
kernel/sys/vnode.h	109-133	include/linux/jfs/ref/jfs_inode.h	96-122
usr/include/jfs/inode.h	39-40	include/linux/jfs/ref/jfs_inode.h	189-90
usr/include/jfs/inode.h	161-166	include/linux/jfs/ref/jfs_inode.h	414-421
usr/include/jfs/inode.h	172-180	include/linux/jfs/ref/jfs_inode.h	37-48
usr/include/jfs/inode.h	199-205	include/linux/jfs/ref/jfs_inode.h	52-59
usr/include/jfs/inode.h	62-66	include/linux/jfs/ref/jfs_inode.h	286-290
usr/include/jfs/inode.h	72-76	include/linux/jfs/ref/jfs_inode.h	295-302
usr/include/jfs/inode.h	83-158	include/linux/jfs/ref/jfs_inode.h	322-411

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Now, if IBM produces a file from OS/2 version of JFS, and it precisely matches the Linux reference file 'include/linux/jfs/ref/jfs_inode.h', I'd be more inclined to believe that the Linux reference file came from the OS/2 version of JFS than from the AIX Version.

Can you provide a reasonable explanation of why the comparison of these two files is so disjointed?

[Bush2000]

So, if you allege that IBM gave up these rights, what did they get from AT&T in exchange for giving up their rights? You do understand that a contract is not valid if there isn't "mutuality of obligation," don't you. That means that when one party grants some consideration to the other party, the other party mutually exchanges something of value for those considerations. Without that, the alleged "contract" is probably invalid.

IBM entered into the contract with the expectation that it would sell AIX -- and it has since made billions on the deal. I'd call that sufficient "mutuality".

Another contract law concept that might apply here is "meeting of the minds." Basically, that means that both parties to the contract should have the same understanding of the terms of the contract.

"Meeting of the minds" is an old theory. The actions of the parties of the contract provide a better guide to assent to its terms. This issue will end up being resolved by a judge or jury.

There's pretty strong evidence from Novell that the understanding was what IBM is presenting. This is important because Novell bought these contracts and these rights from AT&T. Novell has stated in a letter dated October 7, 2003 that The SCO Group's interpretation is wrong, and that, "the focus of the Agreements was on protecting AT&T Code, not on restricting IBM Code just because it happened to be combined with AT&T Code in a modification or derivative work." They go on to say, "Any other result would defy logic as well as the intent of the parties."

Considering that Novell is being sued by SCO at the present time, its opinion can hardly be called neutral. The judge will not even allow such an opinion to be introduced because it is prejudicial.

Can you provide a reasonable explanation of why the comparison of these two files is so disjointed?

Sure. The guys who were porting JFS to Linux picked-and-chose the stuff that they needed -- and discarded the rest. There's nothing mysterious or unusual about this practice. These same developers claimed that they were rearchitecting JFS. But even rearchitecting the code would involve saving certain structures, constants, etc from the original source files. It's highly doubtful that these guys discarded ALL the code -- particularly when the structures were already defined in the existing header files.

[cc2k]

Bush2000 wrote:

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"Meeting of the minds" is an old theory.

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So what. It's still a part of the common law of contracts, and, to the best of my knowledge, courts still recognize this as one of the key requirements of a valid contract.

Bush2000 wrote:

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The actions of the parties of the contract provide a better guide to assent to its terms.

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I'm sure that The SCO Group has thousands of letters from AT&T (and possibly from Novell) to IBM, Sun, HP, Sequent, and many other UNIX licensees claiming that the confidentiality requirements of the AT&T UNIX licenses apply to every line of code that UNIX licensees develop and contribute to their enhanced UNIX packages. They probably have copies of all those letters kept safely with the listings of the millions of lines of AT&T UNIX code that have been "misappropriated" and contributed to Linux.

How long before you try to tell me that the AT&T UNIX license that IBM and AT&T agreed to is a "living document" and is meant to be flexible and change with the times?

Bush2000 wrote:

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This issue will end up being resolved by a judge or jury.

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That might happen eventually, but only if The SCO Group starts to comply with orders from the judges and supply some of the evidence that is necessary to prove their case. Oh, and it would also help if they quit changing the nature of their case and filing "amended complaints".

Bush2000 wrote:

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Considering that Novell is being sued by SCO at the present time, its opinion can hardly be called neutral. The judge will not even allow such an opinion to be introduced because it is prejudicial.

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Somehow, I doubt that. Are you saying that if someone sues me, all they have to do to prevent me from defending myself is sue all the potential witnesses I might call on for evidence in my defense?

The SCO Group sued Novell knowing that Novell might have information relevant to the SCO v. IBM case. Any prejudice or hostility was initiated by The SCO Group, and came long after The SCO Group started this action against IBM. For them to now deny IBM witnesses for their defense based on the fact that the witnesses have been prejudiced by The SCO Groups own actions is ridiculous.

[Bush2000]

So what. It's still a part of the common law of contracts, and, to the best of my knowledge, courts still recognize this as one of the key requirements of a valid contract.

I doubt that many of the original parties can even remember what they agreed to 20 years ago. But, even if they do, be careful of what you wish for: AT&T's recollection of the contract terms may not help your side.

How long before you try to tell me that the AT&T UNIX license that IBM and AT&T agreed to is a "living document" and is meant to be flexible and change with the times?

It's pretty pointless to keep debating hypotheticals with you. I say let justice take its course, and live with the results.

That might happen eventually, but only if The SCO Group starts to comply with orders from the judges and supply some of the evidence that is necessary to prove their case. Oh, and it would also help if they quit changing the nature of their case and filing "amended complaints".

SCO certainly has a right to amend its case, as needed. Every amendment needs to be certified by the court. If the court disagrees that the amendment is beyond the scope of the case, they can always reject the terms. Deal with it. It's called due process. I know. Justice. Silly American thing.

Somehow, I doubt that. Are you saying that if someone sues me, all they have to do to prevent me from defending myself is sue all the potential witnesses I might call on for evidence in my defense?

No, not at all. But judges are called upon to take into account the interests of all parties providing evidence, weigh their credibility, and provide a reasonable interpretation of the facts. Novell has a serious axe to grind here and the judge knows it. Don't try to pretend that Novell has nothing to gain by making its assertions.

[Cboldt]

Cboldt: My take, based on your answer, is that YES, the chain of code matters. IF the code didn't pass through AIX, then no foul against the contract.

Bush2000: Correct.

I'm not sure, but a recent post may be relevant. No need to reply, this post is meant mostly to link a couple related threads ...
AT&T Trips Up SCO <-- Link