What Goes Around Comes Around - The Only Clear Winner in This SCO Versus IBM Case is Microsoft

Ashton was a macaw that lived in the lunch room at George Tate's software company, Ashton-Tate, home of dBase II, the first successful microcomputer database. There is a lot about that long-gone company that was unusual. There was the macaw, of course, which was named for the company, not the other way around. There was George Tate, himself, who died at his desk when he was only 40, but still managed to get married two weeks later (by proxy -- please explain that one to me). And later there was Ashton-Tate's copyright infringement lawsuit against Fox Software that pretty much destroyed the company when it became clear that Ashton-Tate didn't really own its database. NASA did, which meant that Fox had as much right to dBase as did Ashton-Tate. All this came to mind this week while I was thinking (still thinking -- this story seems to never end) about the SCO versus IBM lawsuit over bits of UNIX inside Linux. There is a lot SCO could learn from the experience of Ashton-Tate.

Those who have stuck with this saga recall that I earlier wondered whether SCO put those bits of UNIX System V into Linux themselves, whether they were scavenged from BSD UNIX into both System V and Linux, or whether the problem lay behind Door Number Three.

Door Number Three it is! According to some of those who have had a look at the offending code, it DID come from IBM after all. There are reportedly many lines of identical code, and at least some of the Linux code even carries an IBM copyright notice. Well, this is a surprise to me and a delight at SCO headquarters in Utah, I'm sure, but I'll bet my house that SCO does not prevail and here's why.

According to Laura Didio of the Yankee Group, "[SCO's] claims are not limited to just one area of the Unix System V kernel. SCO claims there are multiple instances of copyright violations. SCO said these include: NUMA (Non Uniform Memory access) a mechanism for enabling large multiprocessing systems, RCU (Read Copy Update) (and) SMP. All of the aforementioned functions represent high end enterprise performance and scalability functionality portions of the code."

And all those parts appear to have come originally from Sequent Computer Systems, now owned by IBM. RCU was implemented in Sequent's DYNIX/ptx, a legally-licensed derivative of System V, in 1994 for SMPs and in 1996 for NUMAs. The RCU code inside the Linux version 2.2 kernel even includes the name of Paul McKenney, who was a major contributor to both the DYNIX and Linux versions. The same guy wrote both pieces of code and probably did do some cutting and pasting between them. To SCO, this is the smoking gun that makes IBM viable for treble damages because SCO's UNIX licenses cover derivative works. That means if I have a System V source code license and I change that code, any changes I make live under the original UNIX copyright.

So that makes IBM guilty, right? Wrong.

If we go back to the Sequent RCU research papers published about this work, we'll see they are very carefully written to present a general way of solving this problem on almost any multi-threaded operating system. It is a general solution. In the key paper, the first mention of some version of UNIX doesn't come until page five under the "implementation" section. They did this work -- work that was supported by a variety of federal grants and involving more companies than just Sequent -- to develop a concept that they then implemented on UNIX.

Now let's think about the UNIX license and how it concerns intellectual property claims. I am not a lawyer, but unfortunately, I have been involved in several copyright and trademark cases, and believe I know the law in this area. SCO looks inside the System V source code and finds this implementation. They look in the Linux source code and find a similar or identical implementation. Sure enough, both can be traced to the same programmer at Sequent, which is now owned by IBM. And SCO, as the UNIX IP enforcer, owns the license for all derivative works -- all derivative UNIX works. David Boies sees this as his smoking gun and he's going to use it. But David Boies is not an IP lawyer by trade. This is key.

The IBM lawyers (who ARE IP lawyers) will strongly argue that none of this matters since we have a case of a single person who did two very similar implementations based on his earlier research. Both his UNIX and Linux versions (works B and C) were derived from his original research (work A) which was not exclusively limited to UNIX. His paper shows that was the case and while SCO may see it as the smoking gun, IBM will see it as the proof of innocence.

What SCO owns (forgetting for the moment Novell's contrary ownership claim and perhaps AT&T's) is the copyright on this particular work as applied to UNIX. But Linux is not UNIX, so applying the same ideas -- even the same code if it comes originally from an upstream source -- is not necessarily copyright infringement.

Say I write a new high-level programming language, then do nearly identical implementations of that language for UNIX and Linux and the UNIX version is made part of some official UNIX distribution. Does that mean the Linux version violates the UNIX copyright? No. But I wrote both versions and the code is identical. Surely that is a copyright violation? No. This isn't a matter of clean rooms and virgins and reverse engineering, it is a matter of precedence and authorship. Sequent (now IBM) did not give up all its rights to the code when it was made part of UNIX. They were very careful to plan it that way.

IBM has the largest legal department of any company in the world. They are INCREDIBLY sensitive about IP ownership, which produces for them more than $1.5 billion per year in license fees. They have embraced the GPL very carefully for their Linux work. The very fact that this code was released under the GPL indicates it was vetted and found acceptable by the IBM legal department. It's not like sometimes they don't bother to go through this procedure.

The upshot is that I believe David Boies will put on a very good show, but that the case will be thrown out on its merits.

And while this is happening, a whole lot of damage will have been done to vendors and customers alike, with only one party benefiting from the drama -- Microsoft.

SCO is effectively trying to destroy both the UNIX and Linux markets. This makes no sense, but that is the logical result of their current efforts. The idea that 1,500 of America's largest companies will be forced to drop Linux and will do so in favor of SCO's UNIXware is ludicrous. Why would those companies spend big bucks buying licenses from SCO -- a company they are upset with -- when they can comply just as easily, and almost for free, by converting to one of the BSD variants? Only Microsoft has had success bullying customers into buying its operating systems and SCO is definitely not Microsoft. This behavior won't sell any software.

Meanwhile, Oracle is trying to destroy PeopleSoft, one of the most successful application development companies around. PeopleSoft's Customer Relationship Management (CRM) software is at the heart of many of the biggest Oracle databases. Oracle, thinking it is reaching for growth in a flat market, actually runs a terrible risk of infuriating its biggest and most important customers.

Microsoft is smart and quick. They are no doubt angling to take advantage of this new chaos in the software industry. If history repeats, Microsoft will make very good business decisions. Everyone else will make very poor, if not stupid business decisions. The result will be that Windows will be stronger, and Microsoft's own CRM products, acquired when it bought Navision (the Danish CRM company), will gain a foothold in the market against PeopleSoft and Oracle. A year from now, Microsoft will be a vastly more powerful business even than it is today, which is saying something.

Where is IBM in all this? If IBM were smart, they would be beating a path to J.D. Edwards, PeopleSoft, and SAP's doorsteps. They would be making those companies sweetheart deals to support and resell IBM's Websphere development environment and DB2 database, grabbing some market share from Oracle. IBM should be helping PeopleSoft hold Oracle at bay, making it worthwhile for customers to move their PeopleSoft and SAP applications from Oracle to DB2. But this is very unlikely to happen.

Unfortunately, it would take IBM months to recognize such a golden opportunity and more months to approve a plan. Probably every IBMer who sells or supports products in this "space" (IBMspeak) understands the situation. But when your leadership is too unaware and too lethargic, well opportunities are missed.

Which brings us back to Ashton the macaw. When Ashton-Tate sued Fox Software for copyright infringement in 1988, the suit was eventually thrown out because Ashton-Tate was shown to have made false statements in its original copyright application for dBase II.

The company claimed that it "owned" the source code underlying dBase II -- code drawn from a database called Vulcan that was developed by Wayne Ratliff at NASA's Jet Propulsion Laboratory. Vulcan was a Z-80 assembler version of JPLDIS, a mainframe database program written at the lab by Jeb Long and others. Long later joined Ashton-Tate and was responsible for leading development of dBase III and IV. Where Ashton-Tate apparently made its mistake was in forgetting that buying the marketing rights to Vulcan from Ratliff didn't invalidate the intellectual property rights of Ratliff's employer, JPL.

Think about it. Ashton-Tate's claim on dBase was, in many ways, similar to SCO's current claim on derivative UNIX works. They both ignored upstream property rights of others. What is ironic about this is that Fox Software wasn't the only company sued by Ashton-Tate for this supposed copyright violation. Fox's co-defendant was SCO. And having been on the other side of such a similar case, they should know better.

I'm sure that if SCO was willing to send Torvalds a copy of the UNIX code, that he'd be willing to run a stipulated search algorithm on both it and Linux himself.

I am perfectly capable of reading intent from context. Granted anything can happen in a courtroom. Look at what the 9th circuit court of appeals did to the Pledge of Allegiance... doesn't that just twist your pin feathers, eagle?

Tell me, where should due diligence end, eh???

First of all, a correction. If you're writing a piece of code strictly for private use, the odds of anyone asserting infringement are essentially zero. So get over it. As for due diligence, if you're releasing a piece of code publicly, you have a responsibility to understand the state-of-the-art in your industry. If you picked up a piece of LZW code from the Web and slapped it into your product (when LZW was still protected by a patent), you had a responsibility to understand the implications of using that code. You could be sued, even if "some guy on the Internet gave it to me for free". Knowing prior art and the state-of-the-art is usually sufficient for most developers to avoid patent infringement. But there are no guarantees.

I'm sure that if SCO was willing to send Torvalds a copy of the UNIX code...

Total pipe dream, again with no regard for personal property.

First of all, a correction. If you're writing a piece of code strictly for private use, the odds of anyone asserting infringement are essentially zero. So get over it.

The fact that nobody will assert is immaterial. YOU COMMITTED A CRIME!!! YOU WILL GO TO HELL FOR AN ETERNITY FOR THAT!!!

So you think the entire database of SCO IP can be convolved for matches against the entire Linux source code in 60 seconds? I seriously doubt it.

Perhaps a code snippet could be located in 60 seconds if SCO knew in advance what to look for. But they didn't have that luxury. It won't take a sophisticated jury to understand the difference.

Certainly you trust the programmers you work with to not go steal somebody else's code when they say they haven't? Linus requires the same pledge.

BS. Torvalds doesn't realize it yet but he's opening himself up to tremendous liability for failure to exclude copyrighted/patented sources. He could be named as a party in one of these suits.

No criminal mind at all. You say a minimal due diligence isn't required before someone GPLs their code. Well theN neither is it required of Linus. Of course if someone tells Linus of a specific piece of code that infringes he will yank it from Linux.

Just wait. Sooner or later, Torvalds will be sued. It's just a matter of time.

All you want to do is knock Linux down.

Don't blame me for your poorly conceived and now illegal product.

Well, if IBM carted a S/390 system into the courtroom, they could. But OK, what if this is off by three orders of magnitude and it runs all day to produce the report?

All you want to do is knock Linux down. Confess it. You don't want to see any constructive solution to industry concernsr.

Dude, you sound like you're gonna cry. And I'm all out of tissues, Tito...

The fact that nobody will assert is immaterial. YOU COMMITTED A CRIME!!! YOU WILL GO TO HELL FOR AN ETERNITY FOR THAT!!!

You're the one who asserted ignorance about the patent, Einstein.

Just wait. Sooner or later, Torvalds will be sued. It's just a matter of time.

Go ahead and file the suit personally if you so desire.

Nobody has proven it's illegal yet. There are nothing but allegations.

Right. And I agree that SCO hasn't made its case yet. But it doesn't look good for IBM.

No I'm gonna laugh when Linux comes out smelling like a rose.

Problem for you is, we're already laughing. Again your mind floats somewhere between now and the post-trial future. No wonder you're always so confused.

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