Posted on 02/07/2004 11:18:39 AM PST by cc2k
U.S. Magistrate Brooke Wells met for nearly 30 minutes in chambers Friday with attorneys for Utah's SCO Group and IBM, hoping to keep their open-court debate simple and to the point.
But when arguments ended shortly before noon, nearly 90 minutes later, Wells acknowledged she would need time to unravel competing motions related to SCO's claims that its proprietary Unix operating system was illegally incorporated into the Linux OS.
Noting the "complicated" nature of the issues, Wells told her tiny, standing-room-only courtroom that she would forgo the usual quick oral ruling in such cases in favor of issuing written rulings "within a week."
SCO seeks up to $50 billion in damages from IBM in a federal suit alleging Big Blue violated its Unix contract with the Lindon-based software company. SCO, which recently added patent violations to its list of allegations, contends IBM illegally dropped Unix code into Linux via contributions from IBM's own AIX and Dynix products.
The suit, along with SCO's subsequent global campaign to license corporate Linux users under the perceived threat of potential litigation, has enraged the pro-Linux "open source" community, a loosely knit network of programmers and free software developers.
Several DoS (denial of service) attacks over the past year, including one borne by the MyDoom.A virus that knocked out SCO's Web site last weekend, have had the company pointing the finger at open-source extremists. Open-sourcers, meantime, have blamed spammers or even SCO itself for the DoS attacks.
On Dec. 12, Wells ordered SCO to provide specific lines of code to prove its claims. IBM was dissatisfied with the response and sought additional data; on Jan. 23, the judge extended SCO's time to comply with the order until Friday's hearing.
SCO's latest responses also fell short, IBM attorney David Marriott argued on Friday, asking Wells to once more order the Utah company to provide "full, complete and detailed" evidence to back its allegations.
"SCO has not complied, your honor," Marriott declared. "They have not provided all the documents requested. . . . We want to know the location of the 17 lines of code [SCO has thus far provided to IBM]. We want to know, exactly, what it is in Linux they believe they have rights to."
Mark Heise, representing SCO, insisted the company has "exhaustively detailed the improper contributions IBM made to Linux." But to provide the "line by line" evidence IBM is now demanding, he said, would require Big Blue to released AIX and Dynix code -- as SCO has requested in its own discovery motion.
Wells interrupted: "The requirement of the court is that you provide those source codes; this is about your response to the order."
Heise insisted, however, that without IBM's compliance, "it is literally impossible" for SCO to itself provide direct proof of the Unix-to-AIX/Dynix-to-Linux continuum it argues exists.
"We're at an impasse and we can't be at an impasse and have this case remain at a standstill," Wells responded. "You've made your point -- I'm just not certain I agree."
IBM's Marriott, arguing against SCO's own request for complete AIX/Dynix programming details, said it was an unreasonable burden on his clients to demand "millions and millions of lines of source code" to determine whether the 17 lines SCO has cited are indeed in Linux.
"Contributions to Linux are public," Marriott said. "All they have to do is get on the Internet."
Heise countered that "not everything they have put into Linux is public," and that pointing SCO to the Internet did not amount to "complete disclosure" it seeks from IBM.
bmims@sltrib.com
Then my question here is given that SCO has accused IBM of moving proprietary IP from UNIX into Linux, isn't it then up to them to show that IBM was who "leaked" it? Are you saying that IBM has to show that it did not make these contributions to Linux? How does one prove a negative in this case? It seems to me that it's up to SCO to prove that it was IBM that "leaked" the IP.
Mark
Thank you for providing the source of your comments in the open for all the public to read for free. It's here that the bugs in your thinking can be vetted resulting in a higher quality product. You are a valued and prolific participant in the open source community.
The usual course of action is for an IP owner to: a) Tell an infringer what they are doing wrong in specific terms; b) Demand corrective action. Only then do you normally get to sue. Since all of Linux can be inspected by anyone, there are no excuses for this failure.
SCO did not do these things, and is on a big fishing expedition. This case, due to SCO's PR FUD, is waaaaay outside the normal parameters of an IP case. Now they failed to produce in discovery. It would be no surprise if the judge sent them home.
OS/370, and OS/2. They were original creations of IBM, and IBM is free to contribute them to Linux, and to continue to use those tecnologies in other products.
Then you said,
You're saying it's a suit for breach of contract, not for copyright or other straight intellectual property violation?
Correct.
If you had actually read the complaint instead of trying to insult other people, you would find Cause of Action 5 says "Copyright Infringment."
Be careful about name calling here. When you are factually wrong you only look even more foolish.
Do you have a reference for this? I researched IBM's OSS guidelines when I worked there, but my manager wouldn't allow me to sign up; I don't believe what you're alleging actually happened.
MarkL wrote:Actually, AIX is a licensed version of UNIX. IBM Licensed UNIX and added enhancements and additional features and sells the entire package (UNIX + IBM enhancements) as AIX.
First off, IIRC, IBM has (or, at least, had) a source code license to incorporate features of UNIX into AIX. That's a given...
MarkL wrote:Actually, The SCO Group claims that proprietary code from AIX (and Dynix) made its way into Linux by way of contributions from IBM. Most (perhaps all) of the code in question is code that was written by IBM (or current subsidiaries of IBM). The SCO Group claims some (as yet unspecified and poorly explained) proprietary interest in this code, which was developed entirely by IBM, with IBM footing all of the development investment.
However, SCO claims that proprietary code from UNIX made its way into Linux from IBM.
Their claim is based on a twisted and tortured definition of "derivative works," and a clause in the license agreement between IBM and AT&T that covers "derivative works." However, there are supplemental agreements in addition to the license agreement, and those supplemental agreements explicitly state that IBM retains all the rights to any enhancements and supplements they added to UNIX and packaged with AIX. The SCO Group seems to either ignore or discount the supplemental agreements.
Furthermore, there has never been a case where "derivative works" have been interpretted to include other works which include none of the code from the original work. Basically, there is code U that IBM licensed from AT&T. There is also enhancement J and enhancement N that IBM wrote. IBM copyrighted the code for enhancement J and enhancement N, and they have supplemental aggrements with AT&T, Novell, Santa Cruz Operation and Caldera that state that IBM retains all rights to the code for their enhancements. They then packaged U+J+N and sold it as product A. Since product A (AIX) contains code U (licensed from AT&T), product A is a derivative work of code U, and is subject to the license agreement with AT&T. That's all normal licensing arrangements, and there's lots of settled IP law on this subject. What The SCO Group is trying to claim in court is that they now hold some rights to enhancement J and enhancement N (code which neither The SCO Group nor any of it's predecessors developed). They are claiming that the code for enhancement J and enhancement N has been contributed to Linux and that this violates their contracts with IBM. Basically, The SCO Group is saying that because IBM contributed code that it developed on it's own, paid for the development with its own investment, but because IBM first added this code to UNIX and sold the total package as AIX, taking this IBM owned code and putting it in Linux makes Linux an unauthorized "derivative work" of UNIX. To the best of my knowledge, no court has ever interpretted the term "derivative work" to include a work which contains none of the original licensed source work.
Basically, SCO is attempting theft by court order, and I doubt that the courts will go along with their scheme.
That's the explanation of why The SCO Group claims they need the source code to every version of AIX and Dynix in order to figure out what parts of Linux were copied from AIX and Dynix in violation of the AT&T-IBM and AT&T-Sequent license agreements.
Unfortunately (for The SCO Group, but fortunately for IBM and the rest of the world), The SCO Group has not been able to convince a judge that The SCO Group owns any rights to the code that IBM developed on their own, at their own expense.
In December, the judge has ordered The SCO Group to identify all code in Linux that they claim rights to and to explain the nature of the rights they claim to hold on that code. The SCO Group has been unable to answer those questions, and has requested access to all of IBM's code before providing the answers. The judge has not been convinced that they need access to all of IBM's code in order to answer the questions, and has put everything on hold until The SCO Group provides the answers. They had a deadline to provide those answers, and they haven't provided the answers as ordered by the judge. The next logical step is for the judge to dismiss the case, probably with prejudice.
| B2K | Where do you think those technologies came from? |
| eno_ | OS/370, and OS/2. They were original creations of IBM, and IBM is free to contribute them to Linux... |
| B2K | 'cept that's not what happened here. IBM first took the code and added it to AIX (see http://conferences.oreillynet.com/presentations/os2002/best_steve.pdf).... according to the contract... it was not permitted to redistribute technology that was incorporated into AIX. |
Look a little further down that page.
- New "ground up" scalable design started in 1995
- JFS for Linux
- OS/2 parent source base
- Where has the source base shipped?
- OS/2 Warp Server for e-business 4/99
- AIX 5L called JFS2 4/01
Appeared in OS/2 two years before it was put into AIX. If SCO does indeed have the right to the AIX implementation as a derivative work (if it incorporates any part of AIX), it has no rights to the original IP in OS/2, in development six years before the AIX port. OS/2 is clearly identified as the parent source base for the Linux port.
Why do you closed-source folks continue to support SCO's efforts to steal from Open Source?
Bush2000 wrote:Actually, much (most) of what The SCO Group has requested is irrelevant to the current SCO v. IBM case.
SCO is asking IBM to produce a log -- aka primary evidence -- of the sources that it contributed. IBM refuses to do this. So, again, I ask: Why?!? What is IBM afraid of? If they didn't do anything wrong, why can't they simply produce the code?!?
What IBM has requested, and what the judge has ordered must be answered before any other discovery can proceed, is for The SCO Group to identify exactly what code they claim proprietary interests in and the nature of the rights that The SCO Group claims to that code.
Once The SCO Group identifies the specific code that is in dispute, they will be able to get the logs from IBM related to the specific code in dispute. If IBM doesn't surrender that information, The SCO Group will file a motion to compel, and the judge will order IBM to disclose the relevant information.
The problem is that at this time it is impossible for IBM or the judge to determine if any of the requests for production from The SCO Group are relevant to the case. This is because The SCO Group hasn't identified exactly which code is in dispute, so nobody (not IBM, and not the judge) knows whether their requests are relevant and important, or irrelevant or potential "fishing expeditions."
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