SCO Says IBM's Irrevocable License is Revocable
Or, the outcome of the case might turn on as yet overlooked documents that already have been made public. For example, here is an excerpt of an e-mail discussion between MozillaQuest Magazine and SCO's Blake Stowell that took place in early May 2003.
Blake Stowell never did show us any documented rhetoric that specifically allows SCO-Caldera to terminate IBM's perpetual, irrevocable license, which is set forth in Amendment X.
Interestingly, however, SCO to some degree did what we suggested then in that discussion in its later Amended Complaint. There, SCO states more specifically, more clearly, and with more particularity how IBM has violated the Unix license agreements. (Perhaps we should send SCO's lawyer, David Boies, a bill for the law lesson.)
We found some language that does seem to allow SCO to terminate IBM's Unix license in a part of the said Exhibit "D". It is in the Reference Source Code Agreement, which is dated 2-5-98. Amendment X is dated 10-17-96. That language does seem to grant SCO-Caldera the right to terminate IBM's irrevocable Unix License.
Under paragraph 1.02 of the Reference Source Code Agreement SCO may terminate all IBM's Unix license rights.
Does that not give SCO authority to terminate IBM's Unix License and override the perpetual, irrevocable license granted to IBM under Amendment X?
We discussed SCO's Amended Complaint and related issues with Thomas C. Carey, a programmer turned lawyer, via e-mail while this article was in development. He does not believe that paragraph 1.02 of the Reference Source Code Agreement SCO is applicable. Please check our interview with Tom Carey in an (upcoming soon) companion article, Are SCO's Rebuilt IBM Lawsuit and Unix License Revocation Winners -- Or More SCO FUD?.
IP attorney Mark Radcliffe noted:
Another proviso is that the facts alleged in SCO-Caldera's Amended Complaint are true, correct, and honest. So far, IBM has not put forth any facts in the SCO v IBM lawsuit itself to challenge the facts as set forth in SCO-Caldera's original Complaint or Amended Complaint.
Until such time as IBM does set forth facts in its court filings that challenge the facts as alleged by SCO, the lawsuit presumption lies in favor of SCO's allegation being true and correct. The Amended Complaint clearly has shifted the burden of proof from SCO-Caldera to IBM, for now.
None of this means there is any purloined code in the kernel.org Linux kernel or the GNU/Linux operating system. To the contrary, the evidence shown to date in SCO's traveling code side-show and circus is that the allegedly purloined code is in the Linux-based system of an IHV (independent hardware vendor) -- and SCO has shown only 80 lines of identical Unix and Linux code in that IHV's Linux-based system.
Also, please keep in mind that this lawsuit is about breach of contract and other torts. It is not about copyright infringement, per se. More about that further on in this article.
On the other hand, IBM could mount an affirmative defense rather than challenge SCO on the facts. For example, IBM might try to mount an affirmative defense that JFS (Journaling File System), NUMA (Non-uniform Memory Access) software, RCU (Read, Copy, and Update), and other such technologies are well-known and therefore, IBM did not violate any confidentiality agreements by helping the Linux kernel developers incorporate those technologies into the Linux kernel.
However, so far IBM has not mounted an affirmative defense. So far, IBM has not mounted any sort of effective defense to the SCO v IBM lawsuit!
IBM listed seven affirmative defenses in its Answer to the original Complaint. But, all IBM did was to make a boiler-plate list of seven affirmative defenses without substance.
Conversely, the statement made by IBM's Trink Guarino Tuesday that IBM owns the copyrights for the work we've done in AIX, JFS, RCU and the code that takes advantage of NUMA hardware indicates that IBM will have a very strong defense to SCO's claims -- when and if it introduces evidence to support that statement in the SCO v IBM lawsuit proceedings.
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.
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