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28 April, 2003

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Will Red Hat and SuSE Be Drawn Into the Fracas?

SCO-Caldera v IBM:

SCO Clears Linux Kernel but Implicates Red Hat and SuSE

Linux and the SCO-Caldera v IBM Lawsuit

By Mike Angelo -- 28 April 2003 (C)

SCO-Caldera v. IBM:

SCO-Caldera & the GNU/Linux Community:

Note: Until 2001, the Santa Cruz Operation (SCO), a UNIX company, and Caldera International (CALD), a Linux company, were two different companies. In 2001, Caldera acquired SCO. Then in 2002 Caldera changed its business name to the SCO Group. However, the corporate name remains Caldera International.

Many people still think of the SCO Group's Linux operations as Caldera. In order to make sure that readers would know and realize throughout the article that what is now the SCO Group is also the company once called Caldera, the SCO Group is often referred to as SCO-Caldera in this article.

In an e-mail discussion that took place 24 and 25 April, SCO-Caldera Senior Vice President Chris Sontag told MozillaQuest Magazine that there is SCO-owned code in Red Hat and SuSE Linux distributions. He also told MozillaQuest Magazine that the tainted code is not in the Linux kernel that Linus [Torvalds] and others have helped develop. We're talking about what's on the periphery of the Linux kernel.

To set the stage for our discussion with Chris Sontag, let's take quick review of what this lawsuit is all about to put the discussion in perspective. Then after that -- on with the discussion.

The Lawsuit

In January 2003, SCO-Caldera formed its SCOsource project, which is aimed at protecting SCO-Caldera intellectual property (IP). That caused a bit of a ruckus.

Not so much because SCO expressed its concern over un-licensed use of its SCO Unix libraries, but rather because of the implication that SCO-Caldera had more widespread IP enforcement plans -- and plans to make more direct attacks on the Linux and open-source communities. SCO Senior Vice-President Chris Sontag heads-up the SCOsource project.

IBM makes it a federal case and delays the proceedings

On 6 March 2003, SCO filed its Caldera v IBM lawsuit in a Salt Lake, Utah state court. IBM then had the case moved to the U.S. District Court, a federal trial court, in Salt Lake. According to the applicable court rules, IBM was originally obliged to file a response to the Complaint by 26 March 2003. However --

In the meantime, IBM twice asked for extensions of time to file a response to SCO's Caldera v IBM Complaint. SCO-Caldera concurred. The deadline for IBM to file a response to the Complaint now is 30 April 2003.

John S. Ferrell is an intellectual property attorney and a partner in the Palo Alto, California based Carr and Ferrell law firm. He also is Chairman of Carr & Ferrell's Intellectual Property Practice Group. In an e-mail discussion about the Caldera v IBM lawsuit, John Ferrell noted: 30-day extensions are routinely requested and granted. If not stipulated to by the opposing party, judges will grant the 30 days and often frown at the denying party for wasting his time.

What the fuss is all about

The Complaint indicates that SCO-Caldera is upset because SCO is losing Unix business -- because its Unix customers are switching to Linux. In its Caldera v IBM Complaint, SCO alleges that IBM misappropriated SCO-owned Unix code, Unix methods, Unix know-how, trade secrets, and so forth by providing these to Linux.

The gist of the Complaint is that IBM's misappropriations of SCO-owned code and know-how substantially aided Linux development and maturation -- thus resulting in SCO Unix customers migrating to Linux distributions. Therefore, SCO-Caldera claims it has been substantially damaged by IBM's alleged misconduct and SCO-Caldera is asking for damages in excess of one-billion dollars.

Previously, John S. Ferrell told MozillaQuest Magazine: So far this is strictly a Trade Secret/Breach of contract case . . . Misappropriation can be either the wrongful acquisition of a trade secret or the breach of confidence in a trade secret. SCO's claim is that the Unix trade secrets although rightfully obtained were wrongfully disclosed to Linux developers . . .

IBM is allegedly piece by piece turning elements of its AIX implementation of UNIX over to the Linux development community. This ultimately will devalue the OS [operating system] manufacturers, such as SCO and Microsoft, and allow hardware computer manufacturers like IBM to direct and differentiate the market.

Note: Please notice here an example of SCO-Caldera's sloppy pleading practice and the resulting confusion and folly that flow from it. SCO-Caldera and its lawyers use the term Linux. However, they fail to state specifically whether they mean the Linux kernel, GNU/Linux, Linux distributions, and/or Linux applications.

For more about the use of the terms GNU/Linux and Linux, please see Richard Stallman's essay Linux and the GNU Project. A link is in the Resources section at the end of this article.

Generally, SCO's Caldera v IBM Complaint is vague and confusing as to whether the accusations involve the Linux kernel, the GNU/Linux operating system, Linux distributions, Linux applications, or whatever. Also, the Caldera v IBM Complaint does not directly accuse SuSE or Red Hat of any specific wrong doing, per se -- although the Complaint does mention them by name.

See for example paragraph 100 of the Caldera v IBM Complaint.

100.  Based on other published statements, IBM currently has over 7,000 employees involved in the transfer of UNIX knowledge into the Linux business of IBM, Red Hat and SuSE (the largest European Linux distributor). On information and belief, a large number of the said IBM employees currently working in the transfer of UNIX to Linux have, or have had, access to the UNIX Software Code. (Caldera v IBM Complaint)

Previously, John S. Ferrell told MozillaQuest Magazine: IBM's defense in this cause of action likely will be that the technology disclosed in support of Linux was either 1) not a trade secret because it was previously known or disclosed by others, or 2) owned by IBM as technology embodied in other or earlier IBM operating systems.

In a different discussion a few weeks ago:

MozillaQuest Magazine: Regarding the four Counts in the Complaint: the Complaint seems to be carved in a manner to restrict liability to IBM. So that if Red Hat, SuSE, the Linux kernel people, or the GNU/Linux people were provided the allegedly secret methods, techniques, know-how, code, and so forth they would not be subject to liability regarding the issues and fact-pattern alleged in the Complaint. Is this correct?

Article Index

John S. Ferrell: The allegations against IBM, hinge on the misappropriation (improper disclosure) of Unix trade secrets. There has been no suggestion that others have misappropriated. SCO will probably need to rely on copyright infringement to sue Red Hat and others.

In today's discussion SCO's Chris Sontag, for the first time as far as we know, publicly identifies and clarifies to some extent whether the Linux kernel, GNU/Linux operating system, Linux distributions, and/or Linux applications are involved in the alleged IBM misconduct -- and to some extent which Linux distribution providers are involved and how they are involved.

John S. Ferrell seems to be right on mark about SCO's need to rely on copyright infringement to sue Red Hat and others. As you read through today's discussion, please notice how Chris Sontag's statements appear to be laying the ground work for copyright infringement claims against Red Hat and SuSE.

See SCO's Chris Sontag Discusses the Details on Page 2 ----->

Continued on Page 2 ----->

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

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

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

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