That could make it very difficult for SCO-Caldera to pursue its threatened copyright infringement claims against GNU/Linux users who refuse to buy SCO UnixWare licenses in order to run the GNU/Linux operating system.

SCO (SCOX) says it now owns the Unix System V copyright registrations. However SCO also now agrees that it does not own the IBM-developed AIX code copyrights. SCO-Caldera also admits that it does not own the copyrights for the JFS, RCU, and NUMA software code that IBM contributed to the Linux kernel -- or other IBM-developed AIX code that IBM contributed to the Linux kernel.

SCO announced Monday in a press release that:

it has received U.S. copyright registrations for UNIX System V source code, a jurisdictional pre-requisite to enforcement of its UNIX copyrights. The company also announced it will offer UnixWare(R) licenses tailored to support run-time, binary use of Linux for all commercial users of Linux based on kernel version 2.4.x and later. SCO will hold harmless commercial Linux customers that purchase a UnixWare license against any past copyright violations, and for any future use of Linux in a run-only, binary format.

Darl McBride, SCO CEO, repeated that announcement in a telephone press conference for journalists and analysts Monday.

In our 22 July article, IBM, SuSE, and Richard Gooch Deny SCO-Caldera Copyright Claims, we looked into the question, Just What Unix or Linux Intellectual Property Does SCO Own?

An important question in the SCO IP sagas has been whether SCO-Caldera owns copyrights for JFS (Journaling File System), RCU (Read, Copy, and Update), NUMA (Non-uniform Memory Access) software, and other AIX code that IBM contributed to the Linux kernel. Simply put these are important code packages that help to make GNU/Linux an enterprise and server grade operating system.

In our 22 July article, IBM, SuSE, and Richard Gooch Deny SCO-Caldera Copyright Claims, we reported an exclusive statement given to MozillaQuest Magazine from IBM's Trink Guarino, Director of IBM Media Relations, that IBM says it owns the JFS, RCU, NUMA software, and other IBM-developed AIX code that IBM contributed to the Linux kernel.

IBM owns the copyrights for the work we've done in AIX, JFS, RCU and the code that takes advantage of NUMA hardware. (Trink Guarino)

In that 22 July article Trink Guarino also told MozillaQuest Magazine:

SCO has not shown us any code contributed to Linux by IBM that violates SCO copyrights. SCO needs to openly show the Linux community any copyrighted Unix Code, which they claim is in Linux. SCO seems to be asking customers to pay for a license based on allegations, not facts.

There is a clarification that needs to be made here. AIX is a combination of SCO's Unix System V code and IBM developed code. IBM is not claiming to own the Unix System V code included in AIX, IBM's adaptation of Unix. IBM is laying claim only to the AIX code that IBM developed.

Yesterday MozillaQuest Magazine received a response from SCO Director of Corporate Communications, Blake Stowell, to questions we had asked him on Monday.

It appears from Blake Stowell's answers to the copyright-related questions that SCO says it does not have copyrights to JFS, RCU, and NUMA software code or to items (a) through (k) of paragraph 108 of SCO's Amended Complaint in the SCO-Caldera v IBM lawsuit.

It also appears from Blake Stowell's answers that SCO does not claim copyright to any of the IBM-written AIX code. All SCO claims copyright to in AIX is that AIX code which is Unix code that was included with System V code that IBM licenses from SCO.

That seems to remove most, if not all, SCO's claims that the Linux kernel contains SCO-copyrighted code.

Here is the uncensored interview:

MozillaQuest Magazine: Does SCO have registered copyrights for JFS, NUMA, and RCU?

Blake Stowell: No we don't, but this is not a copyright case. This is a contracts case. We have taken IBM to court because they are in breach of contract.

MozillaQuest Magazine: If so, is that the same JFS, NUMA, and RCU code that is in the Linux kernel?

Blake Stowell: I can't give you the exact location, but yes, it is in Linux.

MozillaQuest Magazine: Does SCO have registered copyrights for the Unix extensions developed by IBM?

Blake Stowell: No, IBM has those copyrights, but this is not about copyrights. It is about the breaking of a contract.

MozillaQuest Magazine: If not, does SCO claim that it is entitled to register copyrights for the Unix extensions developed by IBM?

Blake Stowell: SCO will not register those because they do not belong to SCO. They belong to IBM.

MozillaQuest Magazine: Analyst Bill Claybrook says that he was shown only about 80 lines of identical IHV [independent hardware vendor] Linux kernel code and Unix code. Other than Laura Didio, is there anyone who says there are more than 80 lines of such identical Linux Kernel code and Unix code?

Blake Stowell: They are stating that because that is what we have shown in our code viewing interviews. That is the tip of the iceberg. There is much more in Linux. Hundreds of files, not lines of code, but files.

MozillaQuest Magazine: Does SCO have registered copyrights for:

(a) scalability improvements,

(b) performance measurement and improvements,

(c) serviceability and error logging improvements,

(d) NUMA scheduler and other scheduler improvements,

(e) Linux PPC 32- and 64-bit support,

(f) AIX Journaling File System

(g) enterprise volume management system to other Linux components,

(h) clusters and cluster installation, including distributed lock manager and other lock management technologies,

(i) threading,

(j) general systems management functions, and

(k) other areas.

Blake Stowell: SCO does not have copyrights on these, but as stated earlier, this is not about copyrights. It is about a contract. SCO had a contract with IBM that said that once licensed, they had to hold this software in confidence. AIX is based on UNIX System V source code. Any derivative work has to be held in confidence. They have not held the AIX code in confidence, which is why we have a lawsuit against them.

This distinction that the SCO-Caldera v IBM lawsuit is about contracts and not copyrights is very important. This lawsuit is about breach of contract and other tort claims. It is not about copyright infringement.

One reason this distinction is so important is because the evidence and proof of facts required in a tort and breach of contract lawsuit are not exactly the same as the evidence and proof of facts required in a copyright infringement lawsuit. SCO-Caldera does not necessarily need to own the Unix copyrights or patents to win this tort and breach of contract lawsuit against IBM.

SCO-Caldera's admissions that IBM owns the copyrights to IBM developed AIX code, JFS, NUMA software, RCU, and so forth does not end the SCO v IBM controversy. It simply, boils down the SCO v IBM controversy to a dispute about whether IBM-developed AIX code, JFS, NUMA software, RCU, and so forth are derivative works and whether they are part of the Unix Software Product under the Unix licenses.

To establish breach of contract under the Unix licensing and other contracts SCO has with IBM, SCO merely has to show that IBM disclosed parts of its Unix/AIX code to the GNU/Linux community or merely disclosed Unix/AIX methods, concepts, or trade secrets to the GNU/Linux community -- and that such conduct is not allowed under the Unix licensing agreements and contracts.

What SCO-Caldera has to prove to win this tort and breach of contract lawsuit is that IBM violated its contractual agreements with AT&T, Novell, and SCO regarding Unix. The AT&T and Novell contracts come into play because SCO-Caldera acquired them when SCO purchased Novell's Unix business in 1995. Novell acquired Unix from AT&T in 1993.

SCO-Caldera being able to prove that IBM-developed AIX code, JFS, NUMA software, RCU, and so forth are derived works under the Unix licenses is the critical and key issue to SCO proving that IBM breached the Unix license agreements. So proving they are derived works brings the IBM developed AIX code, JFS, NUMA software, RCU, and so forth under the umbrella of Unix Software Product as set forth in the Unix Licenses.

That's because the Unix license prohibits IBM from disclosing Unix Software Product code, methods, secrets, and so forth to third parties. Simply put, if SCO-Caldera can prove that IBM-developed AIX code, JFS, NUMA software, RCU, and so forth are derivate works and therefore part of the Unix Software Product and that IBM disclosed the code, methods, secrets and for them to the Linux developers, then SCO wins its IBM lawsuit.

More about this in our (upcoming) articles, SCO-Caldera v IBM Complaint Changed Dramatically and Are SCO's Rebuilt IBM Lawsuit and Unix License Revocation Winners -- Or More SCO FUD?, So please make sure to check the MozillaQuest Magazine front page to see when they are published.

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