There are two operative Complaint paragraphs that particularly address SCO-Caldera claims that IBM contributed contaminated code to the Linux community and that it misappropriated and misused SCO-Caldera proprietary and/or confidential methods, technology, and know-how to aid in Linux development -- paragraphs 91 and 92. IBM refused to answer questions about these two paragraphs or to deny the more legally serious SCO-Caldera charges.

Because IBM fails to deny these claims, we apply our policy about uncooperative sources not answering questions. Thus, we consider IBM to admit that it contributed contaminated code to the Linux community and that it misappropriated and misused SCO-Caldera proprietary and/or confidential methods, technology, and know-how to aid in Linux development,

If you want to go through the boring analyses of paragraphs 91 and 92 read on. If not, just skip ahead to the Summary and Conclusions section.

91. Among other actions, IBM misappropriated the confidential and proprietary information from SCO in Project Monterey. IBM thereafter misused its access to the UNIX Software Code. On or about August 17, 2000, IBM and Red Hat Inc. issued a joint press release through M2 Presswire announcing, inter alia as follows:

"IBM today announced a global agreement that enables Red Hat, Inc. to bundle IBM's Linux-based software. IBM said it would contribute more than 100 printer drivers to the open source community. With these announcements, IBM is making it easier for customers to deploy e-business applications on Linux using a growing selection of hardware and software to meet their needs. The announcements are the latest initiative in IBM's continuing strategy to embrace Linux across its entire product and services portfolio.

Helping build the open standard, IBM has been working closely with the open source community, contributing technologies and resources." (Caldera v IBM Complaint)

MozillaQuest Magazine: For what printers are these drivers?

MozillaQuest Magazine: What software is included in this agreement?

MozillaQuest Magazine: How are these printer drivers related to the Unix software code?

MozillaQuest Magazine: Is this press release on the Internet? If so what is the URL. If not, could you please send a copy of it to me?

IBM refused to answer these questions. Telling us the printers for which IBM supplied drivers, the software included in the agreement, or the URL for the press release are not things that (1) SCO-Caldera likely does not know and (2) reasonably could be expected to affect IBM's defense of SCO-Caldera's accusations. IBM's refusal to answer these questions is just more un-acceptable stone-walling and an attempt to manage news coverage.

Incidentally, despite IBM's uncooperative stone-walling, we did find a URL for the press release to which Complaint paragraph 91 appears to refer: IBM broadens Linux support -- Red Hat and IBM Collaborate on e-Business Software Solutions. There is a link to it in the Resources section at the end of this article.

However, there is a part of SCO-Caldera's Complaint paragraph 91 that does go to its legal defense of the Caldera v IBM lawsuit: IBM misappropriated the confidential and proprietary information from SCO in Project Monterey.  IBM thereafter misused its access to the UNIX Software Code.  Interestingly, there is no allegation included in Complaint paragraph 91 that avers any of the IBM misappropriated . . . confidential and proprietary information from SCO in Project Monterey ended up in the Linux kernel, the GNU/Linux OS, or any Linux distribution. That gets added to the mix in other paragraphs.

Because IBM has failed to admit or deny these SCO-Caldera accusations, we apply our policy to consider unanswered questions in the light least favorable to the source. Thus, we take SCO's allegations that IBM misappropriated the confidential and proprietary information from SCO in Project Monterey [and] IBM thereafter misused its access to the UNIX Software Code as admitted and true -- unless and until IBM publicly denies these allegations.

92.  Thereafter, on December 20, 2000, IBM Vice President Robert LeBlanc disclosed IBM's improper use of confidential and proprietary information learned from Project Monterey to bolster Linux as part of IBM's long term vision, stating:

"Project Monterey was actually started before Linux did. When we started the push to Monterey, the notion was to have one common OS for several architectures. The notion actually came through with Linux, which was open source and supported all hardware. We continued with Monterey as an extension of AIX [IBM UNIX] to support high-end hardware.  AIX 5 has the best of Monterey. Linux cannot fill that need today, but over time we believe it will. To help out we're making contributions to the open source movement like the journal file system. We can't tell our customers to wait for Linux to grow up. 

If Linux had all of the capabilities of AIX, where we could put the AIX code at runtime on top of Linux, then we would.

Right now the Linux kernel does not support all the capabilities of AIX. We've been working on AIX for 20 years. Linux is still young. We're helping Linux kernel up to that level. We understand where the kernel is. We have a lot of people working now as part of the kernel team. At the end of the day, the customer makes the choice, whether we write for AIX or for Linux. We're willing to open source any part of AIX that the Linux community considers valuable. We have open-sourced the journal filesystem, print driver for the Omniprint. AIX is 1.5 million lines of code. If we dump that on the open source community then are people going to understand it?

You're better off taking bits and pieces and the expertise that we bring along with it. We have made a conscious decision to keep contributing."  (Caldera v IBM Complaint)

MozillaQuest Magazine: Is this press release on the Internet? If so what is the URL. If not, could you please send a copy of it to me?

MozillaQuest Magazine: In what year did the Monterey project start?

MozillaQuest Magazine: Regarding "'We're willing to open source any part of AIX that the Linux community considers valuable.'"  We have open-sourced the journal filesystem, print driver for the Omniprint.":

(a) Which journal file-system(s)?

(b) Did IBM "open source" any AIX code?

(c) Why does this alleged open sourcing of the AIX code admitted to by Robert LeBlanc not violate the licenses, agreements, and contracts between IBM and AT&T, Novell, and SCO?

IBM refused to answer these questions. Telling us when IBM started the Monterey Project, or the URL for Robert Leblanc's statement, if there is one, are not things that (1) SCO-Caldera likely does not know and (2) could reasonably be expected to affect IBM's defense of SCO-Caldera's accusations. IBM's refusal to answer these questions is just more un-acceptable corporate evasion and an attempt to manage news coverage.

Interestingly, inter alia, Robert LeBlanc tends to demean the Linux kernel, GNU/Linux, and Linux distributions by calling Linux immature and not ready for the big show. Are there more insults to the Linux community in Robert LeBlanc's statement that IBM now does not want people to see? Might IBM be just as much a bad entity as is SCO-Caldera -- but now is trying to cover that up after seeing the very negative response that sort of insulting rhetoric generated for SCO-Caldera?

This part of Complaint paragraph 92 goes to the facts and meat of the upcoming court proceedings and it does not go to legal strategy. Moreover, this paragraph is not simply a matter between SCO-Caldera and IBM. It involves an attack on the proprietary-free code nature of the Linux kernel and GNU/Linux -- the cornerstone of GNU/Linux and many Linux distributions.

Paragraph 92 involves the Linux kernel, the GNU/Linux operating system, and Linux distributions. So the Linux developers, Linux hackers, Linux users, Linux distribution packagers, ISVs, OEMs, VARs, the entire Linux community have a right to know if IBM contaminated Linux kernel and/or GNU/Linux code with SCO-owned Unix code by open sourcing some or all of its Unix-based AIX code. So do IBM's customers, partners, ISVs, OEMs, VARs, and stockholders have a right to know whether IBM has done these things, the Caldera v IBM lawsuit notwithstanding.

Moreover, IBM investors have a right to know this now, before IBM executives and insiders can dump their IBM stock.

But, perhaps most important of all, the Linux kernel and GNU/Linux developers have a right to know if IBM has contaminated Linux kernel and/or GNU/Linux code with SCO-owned code so they can yank that code from the Linux code-base.

IBM has refused to admit or to deny SCO-Caldera's allegation that IBM contaminated the Linux kernel, GNU/Linux, and/or Linux distribution code-base with contaminated, SCO-owned code. Therefore, we are constrained to apply our policy that unanswered questions be taken as answered in the light least favorable to the source. And therefore we consider IBM to admit that it has contaminated the Linux kernel, GNU/Linux, and/or Linux distribution code-base with contaminated, SCO-owned code -- unless and until IBM publicly denies having done so.

Please see the first two parts of our series about SCO-Caldera's IP claims plus its intentions to enforce and license its intellectual property rights.

SCO-Caldera & the GNU/Linux Community: The SCOsource IP Matter

SCO-Caldera & the GNU/Linux Community: Part 2, Under the Iceberg's Tip