The SCO Monkey Trial (A Street Tech Intro)

By Bruce Dykes

SCO used to be a Linux company called Caldera. They bought AT&T Unix from Novell, who bought it in the early 90’s, but did nothing with it, choosing instead to battle Microsoft in the desktop app arena with WordPerfect and Quattro Pro.

Caldera’s goal was to build a common environment between AT&T Unix, and Linux. SCO’s brand of AT&T Unix had a respectable installed base, and an impressive reseller channel. Caldera found it a more difficult strategy than first thought, the original board wound up moving on, and Caldera found itself under the direction of The Canopy Group and Darl McBride.

The original SCO, Santa Cruz Operation had renamed themselves Tarantella, and gotten out of the OS business in favor of network management software. One of Darl’s first moves at Caldera was to buy the SCO name from Tarantella and rename Caldera to The SCO Group (SCOX).

Brought on board to increase revenue, he started casting about for untapped potential, and he discovered the original AT&T Unix licensing contracts with IBM.

Older geeks will remember the DR DOS vs. Microsoft lawsuit, where, in the early days of Windows 3.1, Windows was programmed to produce error messages when it was loaded on top of DR DOS. Darl McBride headed the company that bought DR DOS, and the lawsuit against Microsoft, and won a decent settlement, so naturally, he thought litigation was the best way to put SCO/Caldera in the black.

The first thoughts when they announced the lawsuit vs. IBM was that it was buyout bait – they were suing for [pinky] one billion dollars! A sum large enough to get themselves noticed, and hopefully bought out to go away.

They selected David Boies to represent them. You may know him from such lawsuits as RIAA vs. Napster, or Al Gore vs. the Florida Election Commission. From those cases, one thinks SCO might have been better represented by Lionel Hutz, but he did win when he was representing the DoJ vs. Microsoft (it was on appeal that M$ was able to get their punishment neutered), and he also represented the government in their antitrust case against IBM, so not a bad selection in and of itself, but hardly promising, either.

IBM is the single largest holder of patents in the country. Entire families of IP lawyers have been raised for the sole purpose of managing IBM’s patent portfolio. Taking them on in an IP battle is the legal equivalent of launching an overland invasion of Russia in September.

After poking the dragon, and being shocked to learn that not only didn’t the dragon want to pay them for their valuable service in waking it up, but was in fact rather more interested in setting them aflame, the common belief is that they changed their strategy to a pump-n-dump run on the stock.

SCO is accusing IBM of violating contractual clauses in their Unix license that prohibit them from taking any software developed for Unix System V, and releasing it into Linux. Please note that they’re not accusing IBM of any copyright violations, or patent infringements, just breach of contract, no matter what else they may be saying to the press.

There’s a few problems with this:

1.a. The contracts don’t prohibit taking software developed for SysV and releasing it as a separate product – they prohibit taking software developed from the SysV code and releasing it as a separate product.

1.b. AT&T sent out side letters to all AT&T licensees to clarify that point that anything developed independently was the product of the developers, and not considered a derivative of the SysV code.

1.c. Novell, the company that sold Unix to SCO, says not only didn’t they sell the totality of all Unix rights to SCO, they still have the right to veto any amendments that SCO wants to make to the licensing agreements, and they’re vetoing any attempts by SCO to revoke IBM’s Unix license.

1.d. While SCO hasn’t exactly been forthcoming with the code in question (remember, they’re only charging IBM with breach of contract, not IP any violations), all their statements to the press have hinted at three different code groups under the SMP (Symmetric MultiProcessing) section of the Linux kernel: JFS (Journaled File System), NUMA (Non Uniform Memory Access), and RCU (Read Copy Update). The problem with that is, all that code was developed independently of any SysV code. JFS was created at IBM, and RCU and NUMA were developed by Sequent, also an AT&T licensee, and also independently of any SysV code.

2. Damages.
2.a. SCO brought the lawsuit back in April. But for all their talk of IP infringement, they refuse to identify the code and allow it to be cleaned from the kernel. Darl has gone on record to say he doesn’t want that to happen.

2.b. What’s more, they’ve been discovery ever since, and so far, SCO has refused to provide any examples to IBM of this allegedly infringing code. Since April. There’ll be oral arguments in court today where IBM says they’ve given SCO what they can, but without SCO being more specific, there’s only so much they can do, while SCO’s counter is that IBM and only IBM knows what code they copied into Linux, therefore it’s down to them to provide the code that they copied, and SCO has no way of knowing what that code may be.

You may notice something about that last item. It’s in direct opposition to multitudes of public statements made by SCO principals over the past several months. There’s one piece of legal advice that any lawyer, anywhere is going to give you for free: shut yer yap! With every statement, SCO’s been putting its feet in its mouth, then pulling the trigger to put a few rounds into them.

And that doesn’t even begin to start covering the IBM countersuit, and the suit by Red Hat charging tortious interference.

The single best source of info on the trial is: