SCO-Linux controversies
Encyclopedia
The SCO-Linux controversies are a series of legal and public disputes between the software company SCO Group
(SCO) and various Linux
vendors and users. The SCO Group alleges that its license agreements with IBM means that source code
that IBM wrote and donated to be incorporated into Linux was added in violation of SCO's contractual rights. Members of the Linux community disagree with SCO's claims; IBM
, Novell
and Red Hat
have ongoing claims against SCO.
On August 10, 2007 a federal district court judge in SCO v. Novell ruled on summary judgment that Novell, not the SCO Group, is the rightful owner of the copyrights covering the Unix operating system. The court also ruled that "SCO is obligated to recognize Novell's waiver of SCO's claims against IBM and Sequent". After the ruling Novell announced they have no interest in suing people over Unix and stated "We don't believe there is Unix in Linux". The final district court ruling, on November 20, 2008, affirmed the summary judgment, and added interest and a constructive trust.
On August 24, 2009, the U.S. Court of Appeals for the Tenth Circuit partially reversed the district court judgment. The appeals court remanded back to trial on the issues of copyright ownership and Novell's contractual waiver rights. The court upheld the $2,547,817 award granted to Novell for the 2003 Sun agreement.
On March 30, 2010, following a jury trial, Novell, and not The SCO Group, was "unanimously [found]" to be the owner of the UNIX and UnixWare copyrights. The SCO Group, through bankruptcy trustee Edward Cahn, has decided to continue the lawsuit against IBM for causing a decline in SCO revenues.
code into Linux". However, the company refused to identify the specific segments of code, claiming that it was a secret which they would reveal only to the court. They did say that the code could be found in the SMP
, RCU
and a few other parts of the Linux kernel
.
On 6 March 2003 they announced that they were suing IBM
for $1 billion, claiming that IBM transferred SCO trade secret
s into Linux. That amount later rose to $3 billion, and then again to $5 billion.
Some educated parties note that the USL v. BSDi
case had shown that the Unix copyrights are weak and unenforceable. SCO has not claimed patent infringement
, as according to the US Patent and Trademark Office database, no AT&T
or Novell patent was ever assigned to SCO. The UNIX trademark
was not owned by SCO. That left arguing over trade secrets, which after some opposition, was hard to take beyond a breach of contract between SCO and IBM, and consequentially a claim only against IBM. SCO was looking for something directed at the greater Linux community, and has since explicitly dropped all trade secret claims from their case.
SCO now had little legal ground at this point and therefore began numerous legal claims and threats against many of the major names in the computer industry, including IBM
, Hewlett-Packard
, Microsoft
, Novell
, Silicon Graphics
, Sun Microsystems
and Red Hat
.
By mid 2004, five major lawsuits had been filed
In cases SCO publicly implied that a number of other parties have committed copyright infringement, including not only Linux developers but also Linux users.
(USL), a division of AT&T
. In 1993, USL sold all UNIX rights and assets to Novell
, including copyrights, trademarks, and active licensing contracts. Some of these rights and assets, plus additional assets derived from Novell's development work, were then sold to the Santa Cruz Operation in 1995. The Santa Cruz Operation had developed and was selling a PC-based UNIX until 2000, when it then resold its UNIX assets to Caldera Systems, which later reorganized into Caldera International and changed its name to SCO Group
.
Through this chain of sales, SCO claims to be the "owner of UNIX". The validity of these claims is hotly contested by others. SCO claims copyright to all UNIX code developed by USL, referred to as SVRx
, and licensing contracts originating with AT&T, saying that these are inherited through the same chain of sales. The primary document SCO presents as evidence of these claims is the "Asset Purchase Agreement", defining the sale between Novell and the Santa Cruz Operation. SCO says that this includes all copyrights to the UNIX code base and contractual rights to the licensing base. The other parties disagree.
made copyright automatic. This code may be in the public domain
and not subject to copyright claims. Other code is affected by the USL v. BSDi
case, and is covered by the BSD License.
Groklaw
uncovered an old settlement made between Unix System Laboratories (USL) and The University of California in the case of USL v. BSDi
. This settlement ended a copyright infringement suit against the University for making BSD source code
freely available that USL felt infringed their copyrights. The university filed a counter suit, saying that USL had taken BSD source code and put it in UNIX without properly acknowledging the university's copyright. This settlement muddies the question of SCO's ownership of major parts of the UNIX source code. This uncertainty is particularly significant in regard to SCO's claims against Linux, which uses some BSD code.
Novell challenges SCO's interpretation of the purchase agreement. In response to a letter SCO sent to 1500 companies on May 12, 2003, Novell exchanged a series of letters with SCO beginning in May 2003, claiming that the copyrights for the core UNIX System V were not included in the asset purchase agreement and are retained by Novell. In October 2003, Novell registered those copyrights with the US Copyright Office.
In response to these challenges from Novell, SCO filed a "slander of title
" suit against Novell, SCO v. Novell
. This claimed that Novell was interfering with their business activities by clouding the ownership of UNIX copyrights. SCO's claim for special damages was dismissed on June 9, 2004 for "failure to specifically plead special damages." However, SCO was given 30 days "to amend its complaint to more specifically plead special damages". In the same ruling, the judge expressed doubt that the Asset Purchase Agreement transferred the relevant copyrights.
SCO filed an amended complaint. In late July, 2005, Novell filed an answer to SCO's complaint, denying all of its accusations. Novell also filed its own Slander of Title counter-lawsuit against SCO. Novell has also filed claims for numerous breaches of the APA (Asset Purchase Agreement) between Novell and the Santa Cruz Operation. Under the APA, Santa Cruz (and later SCO after SCO purchased Santa Cruz Operation's Unix Business) was given the right to market and sell Unixware as a product, retaining 100% of all revenues. Santa Cruz Operation (and later SCO) also was given the responsibility of administering Unix SVR4 license agreements on behalf of Novell. When money was paid for licensing, SCO was to turn over 100% of the revenue to Novell, and then Novell would return 5% as an Administration Fee. Novell claims that SCO signed Unix SVR4 licensing agreements with Microsoft and Sun Microsystems, as well as with numerous Linux End Users for Unix IP allegedly in the Linux Kernel, and then refused to turn the money over to Novell. Novell is suing for 100% of the revenue, claiming SCO is not entitled to the 5% administration fee since they breached their contract with Novell. Novell's counterclaims proposed asking the court to put appropriate funds from SCO into escrow until the case is resolved, since SCO's cash is diminishing quickly.
Novell also retained the right to audit SCO's Unix Licensing Business under the APA. Novell claims that SCO has not turned over vital information about the Microsoft, Sun and Linux End User License Agreements, despite repeated demands by Novell for them to do so. Novell, in another claim that is part of their counter suit, is asking the court to compel SCO to allow Novell to perform this audit of SCO's Unix Business.
On August 10, 2007 Judge Dale Kimball, hearing the SCO v. Novell case, ruled that "...the court concludes that Novell is the owner of the UNIX and UnixWare Copyrights".
), and the third is the derivative works claim of the SCO v. IBM
case.
In May 2003, SCO canceled IBM's SVRx license to its version of UNIX, AIX
. This was based on SCO's claim of unrestricted ownership of the System V licensing contracts inherited from USL. IBM ignored the license cancellation, claiming that an amendment to the original license made it "irrevocable." In addition, as part of the Purchase Agreement, Novell retained certain rights of control over the administration of the licenses which were sold, including rights to act on SCO's behalf in some cases. Novell exercised one of these rights by revoking SCO's cancellation of the IBM license. SCO disputed the validity of both of these actions, and amended its SCO v. IBM
complaint to include copyright infringement, based on IBM's continued sale and use of AIX without a valid SVRx license.
In December 2003, SCO demanded that all UNIX licensees certify some items, some related to the use of Linux, that were not provided for in the license agreement language. Since DaimlerChrysler failed to respond, SCO filed the SCO v. DaimlerChrysler
suit in March 2004. All claims related to the certification demands were summarily dismissed by the court.
Many UNIX licensees have added features to the core UNIX SVRx system and those new features contain computer code not in the original SVRx code base. In most cases, software copyright is owned by the person or company that develops the code. SCO, however, claims that the original licensing agreements define this new code as a derivative work
. They also claim that they have the right to control and restrict the use and distribution of that new code.
These claims are the basis of SCO v. IBM
. SCO's initial complaint, said that IBM violated the original licensing agreement by not maintaining confidentiality with the new code, developed and copyrighted by IBM, and releasing it to the Linux project.
IBM claims that the license agreement (noted in the $Echo newsletter of April 1985) and subsequent licenses defines derivative works as the developer's property. This leaves IBM free to do as it wishes with its new code. In August 2004, IBM filed a motion for partial summary judgment. The motion stated that IBM has the right to do as it wishes with software not part of the original SVRx code. In February 2005, the motion was dismissed as premature, because discovery was not yet complete. IBM refiled this motion along with other summary judgment motions as noted below in September 2006.
, trade secrets, and contractual rights. This claim is fundamental to the SCOsource
program, where SCO has demanded that Linux users obtain licenses from SCOsource to be properly licensed to use the code in question. Exactly which parts of Linux are involved remains unclear as many of their claims are still under seal in the SCO v. IBM
lawsuit.
SCO originally claimed in SCO v. IBM that IBM had violated trade secrets. But these alleged violations by IBM would not have involved Linux distributors or end users. SCO's trade secret claims were dropped by SCO in their amended complaint.
SCO also claimed line-for-line literal copying of code from UNIX code files to Linux kernel files and obfuscated copying of code, but originally refused to publicly identify which code was in violation. SCO submitted to the court evidence of their claims under seal but much of it was excluded from the case after it was challenged by IBM as not meeting the specificity requirements to be included.
These examples have fallen into two groups. The first are segments of files or whole files alleged to originate in UNIX SVRx code such as the errno.h
header file. The second group are files and materials contributed by IBM that originated with IBM development work associated with AIX and Dynix
, IBM's two UNIX products.
Each of these has a different set of issues. In order for copyright to be violated, several conditions must be met. First, the claimant must be able to show that they own the copyrights for the material in question. Second, all or a significant part of the source must be present in the infringing material. There must be enough similarity to show direct copying of material.
SCO's first public disclosure of what they claim is infringing code was at SCO Forum in August 2003. The first, known as the Berkeley Packet Filter
, was distributed under the BSD License and is freely usable by anyone. The second example was related to memory allocation functions, also released under the BSD License. It is no longer in the Linux code base.
SCO has also claimed that code related to application programming interface
s was copied from UNIX. However, this code and the underlying standards they describe are in the public domain and are also covered by rights USL sold to The Open Group
. A later claim was made to code segments related to ELF
file format standards. This material was developed by the Tool Interface Standard (TIS) Committee and placed in the public domain. SCO claims that the TIS Committee had no authority to place ELF in the public domain, even though SCO's predecessor in interest was a member of the committee.
SCO has claimed that some are violating UNIX SVRx copyrights by putting UNIX code into Linux. They may or may not have brought this claim directly in any of their cases. The IBM case is about derivative works, not SVRx code (see below). The Novell case is about copyright ownership. DaimlerChrysler was about contractual compliance statements.
The "may or may not" comes from AutoZone's case. In AutoZone, SCO's complaint claimed damages for AutoZone's use of Linux. However, when objecting to AutoZone's request for a stay pending the IBM case, SCO apparently contradicted their written complaint, claiming that the case was entirely about AutoZone copying certain libraries (outside the Linux kernel) from a UNIX system to a Linux-based system to facilitate moving an internal application to the Linux platform faster; SCO's original complaint does not appear to mention these libraries. AutoZone denies having done this with UNIX libraries. If SCO's oral description of their case is the correct one, then their AutoZone claim has nothing to do with the Linux kernel or the actions of any distributors.
The copyright issue is addressed directly in two of the cases. The first is by IBM in their counterclaim in SCO v. IBM
. The issue is central to a pending motion by IBM, stating that IBM violated no copyrights in its Linux related activities. It is also addressed by Red Hat in the Red Hat v. SCO case. Red Hat claims that SCO's statements about infringement in Linux are unproven and untrue, damaging to them and violates the Lanham Act
. Red Hat asks for an injunction to stop claims of violations without proof. They also ask for a judgment that they violated no SCO copyrights. A hearing on the IBM motion was held on September 15, 2004. Judge Kimball took the motion under advisement. The Red Hat case is on hold.
(SMP), Journaled File System (JFS), Read-copy-update
(RCU) and Non-Uniform Memory Access
(NUMA). This code is questionably in the Linux kernel, and may have been added by IBM through the normal kernel submission process. This code was developed and copyrighted by IBM. IBM added features to AIX and Dynix.
SCO claims that they have "control rights" to this due to their licensing agreements with IBM. SCO disavows claiming that they own the code IBM wrote, rather comparing their "control rights" to an easement
, rights which allow them to prohibit IBM from publicizing the code they wrote, even though IBM owns the copyrights. They base this claim on language in the original license agreement that requires non-disclosure of the code and claim that all code developed by UNIX licensees that is used with the code under license be held in confidence. This claim is discussed above at Control of derivative works.
Caldera
was one of the major distributors of Linux between 1994 and 1998. In August 1998, the company split into Caldera Systems and Caldera Thin Clients, with Caldera Systems taking over the Linux systems business and Caldera Thin Clients concentrating on the Thin Clients and embedded business. The parent and shell company Caldera, Inc. ceased to exist in 2000 after a settlement with Microsoft
in the Caldera v. Microsoft law suit.
Caldera Systems was reorganized to become Caldera International in 2001, the company, which was renamed to The SCO Group in 2002.
Some, like Eben Moglen
, have suggested that because Caldera distributed the allegedly infringing code under the GNU General Public License
, or GPL, that this act would license any proprietary code in Linux.
SCO has stated that they did not know their own code was in Linux, so releasing it under the GPL does not count. However, as late as July and August 2006, long after that claim was made, they were still distributing ELF files (the subject of one of SCO's claims regarding SVRx) under the GPL.
SCO has also claimed, in early stages of the litigation, that the GPL is invalid and non-binding and legally unenforceable. In response, supporters of the GPL, such as Eben Moglen, claimed that SCO's right to distribute Linux relied upon the GPL being a valid copyright license. Later court filings by the SCO group in SCO v. IBM use SCO's alleged compliance with the license as a defense to IBM's counterclaims.
The GPL has become an issue in SCO v. IBM. Under U.S. copyright law, distribution of creative works whose copyright is owned by another party is illegal without permission from the copyright owner, usually in the form of a license; the GPL is such a license, and thus allows distribution, but only under limited conditions. Since IBM released the relevant code under the terms of the GPL, it claims that the only permission that SCO has to copy and distribute IBM's code in Linux is under the terms and conditions of the GPL, one of which requires the distributor to "accept" the GPL. IBM says that SCO violated the GPL by denouncing the GPL's validity, and by claiming that the GPL violates the U.S. Constitution, together with copyright, antitrust and export control laws. IBM also claims that SCO's SCOsource program is incompatible with the requirement that redistributions of GPLed works must be free of copyright licensing fees (fees may be charged for the acts of duplication and support). IBM has brought counterclaims alleging that SCO has violated the GPL and breached IBM's copyrights by collecting licensing fees while distributing IBM's copyrighted material.
. Initially this lawsuit was about breach of contract and trade secrets. Later, SCO dropped the trade secrets claim, so the claim is breach of contract. SCO also added a copyright claim related to IBM's continued use of AIX, but not related to Linux. The judge subsequently stated that the SCO group had indeed made a claim of copyright infringement against IBM regarding Linux. IBM filed multiple counter claims, including charges of both patent violations, which were later dropped, and violation of copyright law. Discovery in the case is still underway.
On February 8, 2005 Judge Kimball ruled that IBM's motions for summary judgment were premature but added:
On June 28, 2006 Judge Brooke Wells granted, in part, IBM's motion to limit SCO's claims and excluded 186 of SCO's 294 items of allegedly misused intellectual property (IBM had challenged 201 of them for various reasons). Wells cited a number of factors including SCO's inability to provide sufficient specificity in these claims:
This left about 100 of SCO's items of allegedly misused intellectual property (the merits of which have not yet been judged), out of 294 items originally disclosed by SCO.
Following the partial summary judgment rulings in the SCO vs Novell Slander of Title case, Judge Kimball asked the parties in SCO v IBM to prepare by August 31, 2007 a statement of the status of this case.
filed suit against SCO on August 4, 2003. Red Hat sued SCO for false advertising, deceptive trade practices and asked for a declaratory judgment of noninfringement of any of SCO's copyrights. This case has been stayed pending resolution of the IBM case.
. Novell
claimed these statements were false, and that they still owned the rights in question. After Novell registered the copyrights to some key UNIX products, SCO filed suit against Novell on January 20, 2004. Novell removed
the suit to federal court on February 6, 2004.
On July 29, 2005, Novell filed its answer with the court, denying SCO's claims. Novell also filed counterclaims asking the court to force SCO to turn over the revenues it had received from UNIX licenses, less a 5% administrative fee. Additionally, Novell asked the court to place the funds in a "constructive trust" in order to ensure that SCO could pay Novell since the company's assets were depleting rapidly.
On August 10, 2007, Judge Dale Kimball, hearing the SCO v. Novell case, ruled that "...the court concludes that Novell is the owner of the UNIX and UnixWare Copyrights". Novell was awarded summary judgments on a number of claims, and a number of SCO claims were denied. SCO was instructed to account for and pass to Novell an appropriate portion of income relating to SCOSource licences to Sun Microsystems and Microsoft. A number of matters are not disposed of by Judge Kimball's ruling, and the outcome of these are still pending.
On July 16, 2008, the trial court issued an order awarding Novell $2,547,817 and ruled that SCO was not authorized to enter into the 2003 agreement with Sun. On November 20, 2008, final judgment in the case affirmed the August 10 ruling, and added interest of $918,122 plus $489 per diem after August 29, 2008, along with a constructive trust
of $625,486.90.
On August 24, 2009, the U.S. Court of Appeals for the Tenth Circuit partially reversed the August 10, 2007 district court summary judgment ruling. The appeals court remanded back to trial on the issues of copyright ownership and Novell's contractual waiver rights. The court upheld the $2,547,817 award granted to Novell for the 2003 Sun agreement. On March 30, 2010, after a three-week trial before Judge Ted Stewart, a jury returned a verdict "confirming Novell's ownership of the Unix copyrights."
On June 10, 2010, Judge Ted Stewart denied SCO's motion for another trial and ruled for Novell on all remaining issues.
On July 7, 2010, SCO appealed the new judgments to the United States Court of Appeals for the Tenth Circuit.
On August 30, 2011, the Tenth Circuit Court of Appeals affirmed the District Court ruling in its entirety, rejecting SCO's attempt to re-argue the case before the Court of Appeals.
, a corporate user of Linux
and former user of SCO OpenServer, was sued by SCO on March 3, 2004. SCO claims AutoZone violated SCO's copyrights by using Linux. The suit was stayed pending the resolution of the IBM, Red Hat and Novell cases.
On September 26, 2008, Judge Robert C. Jones lifted the stay, effective December 31, 2008. He initially scheduled discovery for April 9, 2010. SCO filed an amended complaint on August 14, 2009. On August 31, 2009, AutoZone replied, and filed a motion to dismiss in part.
On October 22, 2009, Edward Cahn, SCO's Chapter 11 trustee, sought bankruptcy court approval for an agreement he reached with AutoZone. According to the court filings, the confidential settlement resolves all claims between SCO and AutoZone.
, a former UNIX user and current Linux user, did not respond to this demand. On March 3, 2004 SCO filed suit against DaimlerChrysler for violating their UNIX license agreement by failing to respond to the certification request. Almost every claim SCO made has been ruled against in summary judgment. The last remaining issue, that of whether DaimlerChrysler made a timely response, was dismissed by agreement of SCO and DaimlerChrysler in December 2004. SCO retains the right to continue this case at a future date, providing it pays legal fees to DaimlerChrysler.
) was not related to original UNIX code at all. The other example did, however, seem to originate from the UNIX code and was apparently contributed by a UNIX vendor, Silicon Graphics. However, an analysis by the Linux community later revealed that:
and Royal Bank of Canada
invested USD$50 million in The SCO Group to support the legal cost of SCO's Linux campaign. Later it was shown that BayStar was referred to SCO by Microsoft
, whose proprietary Windows
operating system competes with Linux. In 2003, BayStar looked at SCO on the recommendation of Microsoft
, according to Lawrence R. Goldfarb, managing partner of BayStar Capital: "It was evident that Microsoft had an agenda".
On April 22, 2004, The New York Times reported that BayStar Capital, a private hedge fund
which had arranged for $50M in funding for SCO in October 2003, was asking for its $20M back. The remainder of the $50M was from Royal Bank of Canada. SCO stated in their press release that they believed that BayStar did not have grounds for making this demand.
On August 27, 2004 SCO and BayStar resolved their dispute.
is an investment group with shares in a trust of different companies. It is a group owned by the Noorda family, also founders of Novell.
Until February 2005, Canopy held SCO shares, and the management of SCO held shares of Canopy. The two parties became embroiled in a bitter dispute when the Noorda family sought to oust board member Ralph Yarro III
on claims of misappropriation
. With internal problems not made public (which included the suicides of Canopy's director of information systems
, Robert Penrose, and Val Kriedel, the daughter of Ray Noorda), the Canopy Group agreed to buy back all the shares that SCO had in Canopy in exchange for their SCO shares and cash.
SCO and Canopy Group are now mostly independent, though SCO continues to rent their Utah office space from Canopy.
had raised up to $106 million via the BayStar referral and other means. Blake Stowell of SCO confirmed the memo was real. BayStar claimed the deal was suggested by Microsoft, but that no money for it came directly from them.
In addition to the Baystar involvement, Microsoft paid SCO $6M (USD) in May 2003 for a license to "Unix and Unix-related patents", despite the lack of Unix-related patents owned by SCO.
This deal was widely seen in the press as a boost to SCO's finances which would help SCO with its lawsuit against IBM.
initiative which sells licenses of SCO's claimed copyrighted software, other than OpenServer and Unixware licenses. After a small number of high profile sales (including one that was denied by the claimed purchaser), SCO claimed to offer corporate users of Linux a license at $699 (USD) per processor running Linux. However, many individuals have found it impossible to buy such a license from SCO. SCO says that participants of the SCOsource initiative are not liable for any claims that SCO makes against Linux users.
The consultant was to review the Linux code and compare it to Unix source code, to find possible copyright infringement. Davidson himself said that he had not expected to find anything significant based on his own knowledge of the code and had voiced his opinion that it was "a waste of time". After 4 to 6 months of consultant's work, Davidson says: "...we had found absolutely *nothing*. i.e. no evidence of any copyright infringement whatsoever."
SCO Group
TSG Group, Inc. is a software company formerly called The SCO Group, Caldera Systems, and Caldera International. After acquiring the Santa Cruz Operation's Server Software and Services divisions, as well as UnixWare and OpenServer technologies, the company changed its focus to UNIX...
(SCO) and various Linux
Linux
Linux is a Unix-like computer operating system assembled under the model of free and open source software development and distribution. The defining component of any Linux system is the Linux kernel, an operating system kernel first released October 5, 1991 by Linus Torvalds...
vendors and users. The SCO Group alleges that its license agreements with IBM means that source code
Source code
In computer science, source code is text written using the format and syntax of the programming language that it is being written in. Such a language is specially designed to facilitate the work of computer programmers, who specify the actions to be performed by a computer mostly by writing source...
that IBM wrote and donated to be incorporated into Linux was added in violation of SCO's contractual rights. Members of the Linux community disagree with SCO's claims; IBM
IBM
International Business Machines Corporation or IBM is an American multinational technology and consulting corporation headquartered in Armonk, New York, United States. IBM manufactures and sells computer hardware and software, and it offers infrastructure, hosting and consulting services in areas...
, Novell
Novell
Novell, Inc. is a multinational software and services company. It is a wholly owned subsidiary of The Attachmate Group. It specializes in network operating systems, such as Novell NetWare; systems management solutions, such as Novell ZENworks; and collaboration solutions, such as Novell Groupwise...
and Red Hat
Red Hat
Red Hat, Inc. is an S&P 500 company in the free and open source software sector, and a major Linux distribution vendor. Founded in 1993, Red Hat has its corporate headquarters in Raleigh, North Carolina with satellite offices worldwide....
have ongoing claims against SCO.
On August 10, 2007 a federal district court judge in SCO v. Novell ruled on summary judgment that Novell, not the SCO Group, is the rightful owner of the copyrights covering the Unix operating system. The court also ruled that "SCO is obligated to recognize Novell's waiver of SCO's claims against IBM and Sequent". After the ruling Novell announced they have no interest in suing people over Unix and stated "We don't believe there is Unix in Linux". The final district court ruling, on November 20, 2008, affirmed the summary judgment, and added interest and a constructive trust.
On August 24, 2009, the U.S. Court of Appeals for the Tenth Circuit partially reversed the district court judgment. The appeals court remanded back to trial on the issues of copyright ownership and Novell's contractual waiver rights. The court upheld the $2,547,817 award granted to Novell for the 2003 Sun agreement.
On March 30, 2010, following a jury trial, Novell, and not The SCO Group, was "unanimously [found]" to be the owner of the UNIX and UnixWare copyrights. The SCO Group, through bankruptcy trustee Edward Cahn, has decided to continue the lawsuit against IBM for causing a decline in SCO revenues.
Background
At the beginning of 2003, SCO claimed that there had been "misappropriation of its UNIX System VUNIX System V
Unix System V, commonly abbreviated SysV , is one of the first commercial versions of the Unix operating system. It was originally developed by American Telephone & Telegraph and first released in 1983. Four major versions of System V were released, termed Releases 1, 2, 3 and 4...
code into Linux". However, the company refused to identify the specific segments of code, claiming that it was a secret which they would reveal only to the court. They did say that the code could be found in the SMP
Symmetric multiprocessing
In computing, symmetric multiprocessing involves a multiprocessor computer hardware architecture where two or more identical processors are connected to a single shared main memory and are controlled by a single OS instance. Most common multiprocessor systems today use an SMP architecture...
, RCU
Read-copy-update
In computer operating systems, read-copy-update is a synchronization mechanism implementing a kind of mutual exclusionPlease note that RCU does not implement mutual exclusion in the conventional sense: RCU readers can and do run concurrently with RCU updates...
and a few other parts of the Linux kernel
Linux kernel
The Linux kernel is an operating system kernel used by the Linux family of Unix-like operating systems. It is one of the most prominent examples of free and open source software....
.
On 6 March 2003 they announced that they were suing IBM
IBM
International Business Machines Corporation or IBM is an American multinational technology and consulting corporation headquartered in Armonk, New York, United States. IBM manufactures and sells computer hardware and software, and it offers infrastructure, hosting and consulting services in areas...
for $1 billion, claiming that IBM transferred SCO trade secret
Trade secret
A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors or customers...
s into Linux. That amount later rose to $3 billion, and then again to $5 billion.
Some educated parties note that the USL v. BSDi
USL v. BSDi
USL v. BSDi was a lawsuit brought in the United States in 1992 by Unix System Laboratories against Berkeley Software Design, Inc and the Regents of the University of California over intellectual property related to UNIX...
case had shown that the Unix copyrights are weak and unenforceable. SCO has not claimed patent infringement
Patent infringement
Patent infringement is the commission of a prohibited act with respect to a patented invention without permission from the patent holder. Permission may typically be granted in the form of a license. The definition of patent infringement may vary by jurisdiction, but it typically includes using or...
, as according to the US Patent and Trademark Office database, no AT&T
AT&T
AT&T Inc. is an American multinational telecommunications corporation headquartered in Whitacre Tower, Dallas, Texas, United States. It is the largest provider of mobile telephony and fixed telephony in the United States, and is also a provider of broadband and subscription television services...
or Novell patent was ever assigned to SCO. The UNIX trademark
Trademark
A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...
was not owned by SCO. That left arguing over trade secrets, which after some opposition, was hard to take beyond a breach of contract between SCO and IBM, and consequentially a claim only against IBM. SCO was looking for something directed at the greater Linux community, and has since explicitly dropped all trade secret claims from their case.
SCO now had little legal ground at this point and therefore began numerous legal claims and threats against many of the major names in the computer industry, including IBM
IBM
International Business Machines Corporation or IBM is an American multinational technology and consulting corporation headquartered in Armonk, New York, United States. IBM manufactures and sells computer hardware and software, and it offers infrastructure, hosting and consulting services in areas...
, Hewlett-Packard
Hewlett-Packard
Hewlett-Packard Company or HP is an American multinational information technology corporation headquartered in Palo Alto, California, USA that provides products, technologies, softwares, solutions and services to consumers, small- and medium-sized businesses and large enterprises, including...
, Microsoft
Microsoft
Microsoft Corporation is an American public multinational corporation headquartered in Redmond, Washington, USA that develops, manufactures, licenses, and supports a wide range of products and services predominantly related to computing through its various product divisions...
, Novell
Novell
Novell, Inc. is a multinational software and services company. It is a wholly owned subsidiary of The Attachmate Group. It specializes in network operating systems, such as Novell NetWare; systems management solutions, such as Novell ZENworks; and collaboration solutions, such as Novell Groupwise...
, Silicon Graphics
Silicon Graphics
Silicon Graphics, Inc. was a manufacturer of high-performance computing solutions, including computer hardware and software, founded in 1981 by Jim Clark...
, Sun Microsystems
Sun Microsystems
Sun Microsystems, Inc. was a company that sold :computers, computer components, :computer software, and :information technology services. Sun was founded on February 24, 1982...
and Red Hat
Red Hat
Red Hat, Inc. is an S&P 500 company in the free and open source software sector, and a major Linux distribution vendor. Founded in 1993, Red Hat has its corporate headquarters in Raleigh, North Carolina with satellite offices worldwide....
.
By mid 2004, five major lawsuits had been filed
- SCO v. IBMSCO v. IBMSCO v. IBM is a civil lawsuit in the United States District Court of Utah. The SCO Group asserted that there are legal uncertainties regarding the use of the Linux operating system due to alleged violations of IBM's Unix licenses in the development of Linux code at IBM.-Summary:On March 6, 2003,...
- Red Hat v. SCORed Hat v. SCOThe Red Hat v. SCO lawsuit - Red Hat filed suit against The SCO Group on August 4, 2003. Red Hat is asking for a permanent injunction against SCO's Linux campaign and a number of declaratory judgments that Red Hat has not violated SCO's copyrights....
- SCO v. NovellSCO v. NovellSCO v. Novell was a United States lawsuit in which the The SCO Group claimed ownership of the source code for the Unix operating system, including portions of Linux...
(not directly related to Linux, the suit has more to do with Unix copyrights) - SCO v. DaimlerChryslerSCO v. DaimlerChryslerThe SCO Group v. DaimlerChrysler was a lawsuit filed in the United States, in the state of Michigan. In December 2003, SCO sent a number of letters to Unix licensees. In these letters, SCO demanded that the licensees certify certain things regarding their usage of Linux. DaimlerChrysler, a former...
- SCO v. AutoZone
In cases SCO publicly implied that a number of other parties have committed copyright infringement, including not only Linux developers but also Linux users.
UNIX SVRx
SCO's claims are derived from several contracts that may have transferred UNIX System V Release 4 intellectual property assets. The UNIX IP rights originated with Unix System LaboratoriesUnix System Laboratories
Unix System Laboratories was originally organized as part of Bell Labs in 1989. USL joined with the UNIX Software Operation, also a Bell Laboratories division, in 1990. It assumed responsibility for Unix development and licensing activities...
(USL), a division of AT&T
AT&T
AT&T Inc. is an American multinational telecommunications corporation headquartered in Whitacre Tower, Dallas, Texas, United States. It is the largest provider of mobile telephony and fixed telephony in the United States, and is also a provider of broadband and subscription television services...
. In 1993, USL sold all UNIX rights and assets to Novell
Novell
Novell, Inc. is a multinational software and services company. It is a wholly owned subsidiary of The Attachmate Group. It specializes in network operating systems, such as Novell NetWare; systems management solutions, such as Novell ZENworks; and collaboration solutions, such as Novell Groupwise...
, including copyrights, trademarks, and active licensing contracts. Some of these rights and assets, plus additional assets derived from Novell's development work, were then sold to the Santa Cruz Operation in 1995. The Santa Cruz Operation had developed and was selling a PC-based UNIX until 2000, when it then resold its UNIX assets to Caldera Systems, which later reorganized into Caldera International and changed its name to SCO Group
SCO Group
TSG Group, Inc. is a software company formerly called The SCO Group, Caldera Systems, and Caldera International. After acquiring the Santa Cruz Operation's Server Software and Services divisions, as well as UnixWare and OpenServer technologies, the company changed its focus to UNIX...
.
Through this chain of sales, SCO claims to be the "owner of UNIX". The validity of these claims is hotly contested by others. SCO claims copyright to all UNIX code developed by USL, referred to as SVRx
UNIX System V
Unix System V, commonly abbreviated SysV , is one of the first commercial versions of the Unix operating system. It was originally developed by American Telephone & Telegraph and first released in 1983. Four major versions of System V were released, termed Releases 1, 2, 3 and 4...
, and licensing contracts originating with AT&T, saying that these are inherited through the same chain of sales. The primary document SCO presents as evidence of these claims is the "Asset Purchase Agreement", defining the sale between Novell and the Santa Cruz Operation. SCO says that this includes all copyrights to the UNIX code base and contractual rights to the licensing base. The other parties disagree.
UNIX copyrights ownership
The status of copyrights from USL is murky, since UNIX code is a compilation of elements with different copyright histories. Some code was released without copyright notice before the Copyright Act of 1976Copyright Act of 1976
The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions...
made copyright automatic. This code may be in the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
and not subject to copyright claims. Other code is affected by the USL v. BSDi
USL v. BSDi
USL v. BSDi was a lawsuit brought in the United States in 1992 by Unix System Laboratories against Berkeley Software Design, Inc and the Regents of the University of California over intellectual property related to UNIX...
case, and is covered by the BSD License.
Groklaw
Groklaw
Groklaw is an award-winning website covering legal news of interest to the free and open source software community. Started as a law blog on May 16, 2003 by paralegal Pamela Jones at Radio UserLand, it has covered issues such as the SCO-Linux lawsuits, the EU anti-trust case against Microsoft, and...
uncovered an old settlement made between Unix System Laboratories (USL) and The University of California in the case of USL v. BSDi
USL v. BSDi
USL v. BSDi was a lawsuit brought in the United States in 1992 by Unix System Laboratories against Berkeley Software Design, Inc and the Regents of the University of California over intellectual property related to UNIX...
. This settlement ended a copyright infringement suit against the University for making BSD source code
Source code
In computer science, source code is text written using the format and syntax of the programming language that it is being written in. Such a language is specially designed to facilitate the work of computer programmers, who specify the actions to be performed by a computer mostly by writing source...
freely available that USL felt infringed their copyrights. The university filed a counter suit, saying that USL had taken BSD source code and put it in UNIX without properly acknowledging the university's copyright. This settlement muddies the question of SCO's ownership of major parts of the UNIX source code. This uncertainty is particularly significant in regard to SCO's claims against Linux, which uses some BSD code.
Novell challenges SCO's interpretation of the purchase agreement. In response to a letter SCO sent to 1500 companies on May 12, 2003, Novell exchanged a series of letters with SCO beginning in May 2003, claiming that the copyrights for the core UNIX System V were not included in the asset purchase agreement and are retained by Novell. In October 2003, Novell registered those copyrights with the US Copyright Office.
In response to these challenges from Novell, SCO filed a "slander of title
Slander of title
In law, slander of title is normally a claim involving real estate in which one entity falsely claims to own another entity's property. Alternatively, it is casting aspersion on someone else's property, business or goods, e.g. claiming a house is infested with termites , or falsely claiming you own...
" suit against Novell, SCO v. Novell
SCO v. Novell
SCO v. Novell was a United States lawsuit in which the The SCO Group claimed ownership of the source code for the Unix operating system, including portions of Linux...
. This claimed that Novell was interfering with their business activities by clouding the ownership of UNIX copyrights. SCO's claim for special damages was dismissed on June 9, 2004 for "failure to specifically plead special damages." However, SCO was given 30 days "to amend its complaint to more specifically plead special damages". In the same ruling, the judge expressed doubt that the Asset Purchase Agreement transferred the relevant copyrights.
SCO filed an amended complaint. In late July, 2005, Novell filed an answer to SCO's complaint, denying all of its accusations. Novell also filed its own Slander of Title counter-lawsuit against SCO. Novell has also filed claims for numerous breaches of the APA (Asset Purchase Agreement) between Novell and the Santa Cruz Operation. Under the APA, Santa Cruz (and later SCO after SCO purchased Santa Cruz Operation's Unix Business) was given the right to market and sell Unixware as a product, retaining 100% of all revenues. Santa Cruz Operation (and later SCO) also was given the responsibility of administering Unix SVR4 license agreements on behalf of Novell. When money was paid for licensing, SCO was to turn over 100% of the revenue to Novell, and then Novell would return 5% as an Administration Fee. Novell claims that SCO signed Unix SVR4 licensing agreements with Microsoft and Sun Microsystems, as well as with numerous Linux End Users for Unix IP allegedly in the Linux Kernel, and then refused to turn the money over to Novell. Novell is suing for 100% of the revenue, claiming SCO is not entitled to the 5% administration fee since they breached their contract with Novell. Novell's counterclaims proposed asking the court to put appropriate funds from SCO into escrow until the case is resolved, since SCO's cash is diminishing quickly.
Novell also retained the right to audit SCO's Unix Licensing Business under the APA. Novell claims that SCO has not turned over vital information about the Microsoft, Sun and Linux End User License Agreements, despite repeated demands by Novell for them to do so. Novell, in another claim that is part of their counter suit, is asking the court to compel SCO to allow Novell to perform this audit of SCO's Unix Business.
On August 10, 2007 Judge Dale Kimball, hearing the SCO v. Novell case, ruled that "...the court concludes that Novell is the owner of the UNIX and UnixWare Copyrights".
License administration standing
The Novell to Santa Cruz Operation Asset Purchase Agreement also involved the administration of some 6000 standing licensing agreements between various UNIX users and the previous owners. These licensees include universities, software corporations and computer hardware companies. SCO's claimed ownership of the licenses has become an issue in three aspects of the SCO-Linux controversies. The first was the cancellation of IBM's license, the second was SCO's complaint against DaimlerChrysler (see SCO v. DaimlerChryslerSCO v. DaimlerChrysler
The SCO Group v. DaimlerChrysler was a lawsuit filed in the United States, in the state of Michigan. In December 2003, SCO sent a number of letters to Unix licensees. In these letters, SCO demanded that the licensees certify certain things regarding their usage of Linux. DaimlerChrysler, a former...
), and the third is the derivative works claim of the SCO v. IBM
SCO v. IBM
SCO v. IBM is a civil lawsuit in the United States District Court of Utah. The SCO Group asserted that there are legal uncertainties regarding the use of the Linux operating system due to alleged violations of IBM's Unix licenses in the development of Linux code at IBM.-Summary:On March 6, 2003,...
case.
In May 2003, SCO canceled IBM's SVRx license to its version of UNIX, AIX
AIX operating system
AIX AIX AIX (Advanced Interactive eXecutive, pronounced "a i ex" is a series of proprietary Unix operating systems developed and sold by IBM for several of its computer platforms...
. This was based on SCO's claim of unrestricted ownership of the System V licensing contracts inherited from USL. IBM ignored the license cancellation, claiming that an amendment to the original license made it "irrevocable." In addition, as part of the Purchase Agreement, Novell retained certain rights of control over the administration of the licenses which were sold, including rights to act on SCO's behalf in some cases. Novell exercised one of these rights by revoking SCO's cancellation of the IBM license. SCO disputed the validity of both of these actions, and amended its SCO v. IBM
SCO v. IBM
SCO v. IBM is a civil lawsuit in the United States District Court of Utah. The SCO Group asserted that there are legal uncertainties regarding the use of the Linux operating system due to alleged violations of IBM's Unix licenses in the development of Linux code at IBM.-Summary:On March 6, 2003,...
complaint to include copyright infringement, based on IBM's continued sale and use of AIX without a valid SVRx license.
In December 2003, SCO demanded that all UNIX licensees certify some items, some related to the use of Linux, that were not provided for in the license agreement language. Since DaimlerChrysler failed to respond, SCO filed the SCO v. DaimlerChrysler
SCO v. DaimlerChrysler
The SCO Group v. DaimlerChrysler was a lawsuit filed in the United States, in the state of Michigan. In December 2003, SCO sent a number of letters to Unix licensees. In these letters, SCO demanded that the licensees certify certain things regarding their usage of Linux. DaimlerChrysler, a former...
suit in March 2004. All claims related to the certification demands were summarily dismissed by the court.
Control of derivative works
The third issue based on the UNIX licensees agreement is related to SCO's claims of control of derivative works.Many UNIX licensees have added features to the core UNIX SVRx system and those new features contain computer code not in the original SVRx code base. In most cases, software copyright is owned by the person or company that develops the code. SCO, however, claims that the original licensing agreements define this new code as a derivative work
Derivative work
In United States copyright law, a derivative work is an expressive creation that includes major, copyright-protected elements of an original, previously created first work .-Definition:...
. They also claim that they have the right to control and restrict the use and distribution of that new code.
These claims are the basis of SCO v. IBM
SCO v. IBM
SCO v. IBM is a civil lawsuit in the United States District Court of Utah. The SCO Group asserted that there are legal uncertainties regarding the use of the Linux operating system due to alleged violations of IBM's Unix licenses in the development of Linux code at IBM.-Summary:On March 6, 2003,...
. SCO's initial complaint, said that IBM violated the original licensing agreement by not maintaining confidentiality with the new code, developed and copyrighted by IBM, and releasing it to the Linux project.
IBM claims that the license agreement (noted in the $Echo newsletter of April 1985) and subsequent licenses defines derivative works as the developer's property. This leaves IBM free to do as it wishes with its new code. In August 2004, IBM filed a motion for partial summary judgment. The motion stated that IBM has the right to do as it wishes with software not part of the original SVRx code. In February 2005, the motion was dismissed as premature, because discovery was not yet complete. IBM refiled this motion along with other summary judgment motions as noted below in September 2006.
SCO allegations of copyright and trade secret violations
SCO claims that Linux infringes SCO's copyrightCopyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
, trade secrets, and contractual rights. This claim is fundamental to the SCOsource
SCOsource
SCOsource is a business division of The SCO Group that manages its Unix intellectual property. The term SCOsource is often used for SCO's licensing program that allows corporate users of Linux to buy licenses to proprietary Unix technology that SCO claims exists in the Linux operating system...
program, where SCO has demanded that Linux users obtain licenses from SCOsource to be properly licensed to use the code in question. Exactly which parts of Linux are involved remains unclear as many of their claims are still under seal in the SCO v. IBM
SCO v. IBM
SCO v. IBM is a civil lawsuit in the United States District Court of Utah. The SCO Group asserted that there are legal uncertainties regarding the use of the Linux operating system due to alleged violations of IBM's Unix licenses in the development of Linux code at IBM.-Summary:On March 6, 2003,...
lawsuit.
SCO originally claimed in SCO v. IBM that IBM had violated trade secrets. But these alleged violations by IBM would not have involved Linux distributors or end users. SCO's trade secret claims were dropped by SCO in their amended complaint.
SCO also claimed line-for-line literal copying of code from UNIX code files to Linux kernel files and obfuscated copying of code, but originally refused to publicly identify which code was in violation. SCO submitted to the court evidence of their claims under seal but much of it was excluded from the case after it was challenged by IBM as not meeting the specificity requirements to be included.
These examples have fallen into two groups. The first are segments of files or whole files alleged to originate in UNIX SVRx code such as the errno.h
Errno.h
Errno.h is a header file in the standard library of C programming language. It defines macros to report error conditions through error codes stored in a static location called errno....
header file. The second group are files and materials contributed by IBM that originated with IBM development work associated with AIX and Dynix
Dynix
Dynix is an operating system developed by Sequent. It is a flavor of Unix based on BSD. DYNIX was replaced by DYNIX/ptx, which was based on the System V version of UNIX produced by AT&T....
, IBM's two UNIX products.
Each of these has a different set of issues. In order for copyright to be violated, several conditions must be met. First, the claimant must be able to show that they own the copyrights for the material in question. Second, all or a significant part of the source must be present in the infringing material. There must be enough similarity to show direct copying of material.
SVRx code allegedly in Linux
The issue of ownership of the SVRx code base was discussed above. Besides the unresolved issue of what was actually transferred from Novell to Santa Cruz Operation, there are also the portions of the SVRx code base that are covered by BSD copyrights or that are in the public domain.SCO's first public disclosure of what they claim is infringing code was at SCO Forum in August 2003. The first, known as the Berkeley Packet Filter
Berkeley Packet Filter
The Berkeley Packet Filter or BPF provides, on some Unix-like systems, a raw interface to data link layers, permitting raw link-layer packets to be sent and received...
, was distributed under the BSD License and is freely usable by anyone. The second example was related to memory allocation functions, also released under the BSD License. It is no longer in the Linux code base.
SCO has also claimed that code related to application programming interface
Application programming interface
An application programming interface is a source code based specification intended to be used as an interface by software components to communicate with each other...
s was copied from UNIX. However, this code and the underlying standards they describe are in the public domain and are also covered by rights USL sold to The Open Group
The Open Group
The Open Group is a vendor and technology-neutral industry consortium, currently with over three hundred member organizations. It was formed in 1996 when X/Open merged with the Open Software Foundation...
. A later claim was made to code segments related to ELF
Executable and Linkable Format
In computing, the Executable and Linkable Format is a common standard file format for executables, object code, shared libraries, and core dumps. First published in the System V Application Binary Interface specification, and later in the Tool Interface Standard, it was quickly accepted among...
file format standards. This material was developed by the Tool Interface Standard (TIS) Committee and placed in the public domain. SCO claims that the TIS Committee had no authority to place ELF in the public domain, even though SCO's predecessor in interest was a member of the committee.
SCO has claimed that some are violating UNIX SVRx copyrights by putting UNIX code into Linux. They may or may not have brought this claim directly in any of their cases. The IBM case is about derivative works, not SVRx code (see below). The Novell case is about copyright ownership. DaimlerChrysler was about contractual compliance statements.
The "may or may not" comes from AutoZone's case. In AutoZone, SCO's complaint claimed damages for AutoZone's use of Linux. However, when objecting to AutoZone's request for a stay pending the IBM case, SCO apparently contradicted their written complaint, claiming that the case was entirely about AutoZone copying certain libraries (outside the Linux kernel) from a UNIX system to a Linux-based system to facilitate moving an internal application to the Linux platform faster; SCO's original complaint does not appear to mention these libraries. AutoZone denies having done this with UNIX libraries. If SCO's oral description of their case is the correct one, then their AutoZone claim has nothing to do with the Linux kernel or the actions of any distributors.
The copyright issue is addressed directly in two of the cases. The first is by IBM in their counterclaim in SCO v. IBM
SCO v. IBM
SCO v. IBM is a civil lawsuit in the United States District Court of Utah. The SCO Group asserted that there are legal uncertainties regarding the use of the Linux operating system due to alleged violations of IBM's Unix licenses in the development of Linux code at IBM.-Summary:On March 6, 2003,...
. The issue is central to a pending motion by IBM, stating that IBM violated no copyrights in its Linux related activities. It is also addressed by Red Hat in the Red Hat v. SCO case. Red Hat claims that SCO's statements about infringement in Linux are unproven and untrue, damaging to them and violates the Lanham Act
Lanham Act
The Lanham Act is a piece of legislation that contains the federal statutes of trademark law in the United States. The Act prohibits a number of activities, including trademark infringement, trademark dilution, and false advertising.-History:Named for Representative Fritz G...
. Red Hat asks for an injunction to stop claims of violations without proof. They also ask for a judgment that they violated no SCO copyrights. A hearing on the IBM motion was held on September 15, 2004. Judge Kimball took the motion under advisement. The Red Hat case is on hold.
Allegations of reverse copying
EWeek has reported allegations that SCO may have copied parts of the Linux kernel into SCO UNIX as part of its Linux Kernel Personality feature. If true, this would mean that SCO is guilty of a breach of the Linux kernel copyrights. SCO has denied this allegation, but according to Groklaw, one SCO employee confirmed it in a deposition.IBM code in Linux
SCO has claimed a number of instances of IBM Linux code as breaches of contract. These examples include code related to Symmetric multiprocessingSymmetric multiprocessing
In computing, symmetric multiprocessing involves a multiprocessor computer hardware architecture where two or more identical processors are connected to a single shared main memory and are controlled by a single OS instance. Most common multiprocessor systems today use an SMP architecture...
(SMP), Journaled File System (JFS), Read-copy-update
Read-copy-update
In computer operating systems, read-copy-update is a synchronization mechanism implementing a kind of mutual exclusionPlease note that RCU does not implement mutual exclusion in the conventional sense: RCU readers can and do run concurrently with RCU updates...
(RCU) and Non-Uniform Memory Access
Non-Uniform Memory Access
Non-Uniform Memory Access is a computer memory design used in Multiprocessing, where the memory access time depends on the memory location relative to a processor...
(NUMA). This code is questionably in the Linux kernel, and may have been added by IBM through the normal kernel submission process. This code was developed and copyrighted by IBM. IBM added features to AIX and Dynix.
SCO claims that they have "control rights" to this due to their licensing agreements with IBM. SCO disavows claiming that they own the code IBM wrote, rather comparing their "control rights" to an easement
Easement
An easement is a certain right to use the real property of another without possessing it.Easements are helpful for providing pathways across two or more pieces of property or allowing an individual to fish in a privately owned pond...
, rights which allow them to prohibit IBM from publicizing the code they wrote, even though IBM owns the copyrights. They base this claim on language in the original license agreement that requires non-disclosure of the code and claim that all code developed by UNIX licensees that is used with the code under license be held in confidence. This claim is discussed above at Control of derivative works.
SCO and the GPL
Before changing their name to the SCO Group, the company was known as Caldera International.Caldera
Caldera (company)
Caldera was a US-based software company founded in 1994 to develop Linux- and DOS-based operating system products.- Caldera :Caldera, Inc...
was one of the major distributors of Linux between 1994 and 1998. In August 1998, the company split into Caldera Systems and Caldera Thin Clients, with Caldera Systems taking over the Linux systems business and Caldera Thin Clients concentrating on the Thin Clients and embedded business. The parent and shell company Caldera, Inc. ceased to exist in 2000 after a settlement with Microsoft
Microsoft
Microsoft Corporation is an American public multinational corporation headquartered in Redmond, Washington, USA that develops, manufactures, licenses, and supports a wide range of products and services predominantly related to computing through its various product divisions...
in the Caldera v. Microsoft law suit.
Caldera Systems was reorganized to become Caldera International in 2001, the company, which was renamed to The SCO Group in 2002.
Some, like Eben Moglen
Eben Moglen
Eben Moglen is a professor of law and legal history at Columbia University, and is the founder, Director-Counsel and Chairman of Software Freedom Law Center, whose client list includes numerous pro bono clients, such as the Free Software Foundation....
, have suggested that because Caldera distributed the allegedly infringing code under the GNU General Public License
GNU General Public License
The GNU General Public License is the most widely used free software license, originally written by Richard Stallman for the GNU Project....
, or GPL, that this act would license any proprietary code in Linux.
SCO has stated that they did not know their own code was in Linux, so releasing it under the GPL does not count. However, as late as July and August 2006, long after that claim was made, they were still distributing ELF files (the subject of one of SCO's claims regarding SVRx) under the GPL.
SCO has also claimed, in early stages of the litigation, that the GPL is invalid and non-binding and legally unenforceable. In response, supporters of the GPL, such as Eben Moglen, claimed that SCO's right to distribute Linux relied upon the GPL being a valid copyright license. Later court filings by the SCO group in SCO v. IBM use SCO's alleged compliance with the license as a defense to IBM's counterclaims.
The GPL has become an issue in SCO v. IBM. Under U.S. copyright law, distribution of creative works whose copyright is owned by another party is illegal without permission from the copyright owner, usually in the form of a license; the GPL is such a license, and thus allows distribution, but only under limited conditions. Since IBM released the relevant code under the terms of the GPL, it claims that the only permission that SCO has to copy and distribute IBM's code in Linux is under the terms and conditions of the GPL, one of which requires the distributor to "accept" the GPL. IBM says that SCO violated the GPL by denouncing the GPL's validity, and by claiming that the GPL violates the U.S. Constitution, together with copyright, antitrust and export control laws. IBM also claims that SCO's SCOsource program is incompatible with the requirement that redistributions of GPLed works must be free of copyright licensing fees (fees may be charged for the acts of duplication and support). IBM has brought counterclaims alleging that SCO has violated the GPL and breached IBM's copyrights by collecting licensing fees while distributing IBM's copyrighted material.
SCO v. IBM
On March 7, 2003, SCO filed suit against IBMIBM
International Business Machines Corporation or IBM is an American multinational technology and consulting corporation headquartered in Armonk, New York, United States. IBM manufactures and sells computer hardware and software, and it offers infrastructure, hosting and consulting services in areas...
. Initially this lawsuit was about breach of contract and trade secrets. Later, SCO dropped the trade secrets claim, so the claim is breach of contract. SCO also added a copyright claim related to IBM's continued use of AIX, but not related to Linux. The judge subsequently stated that the SCO group had indeed made a claim of copyright infringement against IBM regarding Linux. IBM filed multiple counter claims, including charges of both patent violations, which were later dropped, and violation of copyright law. Discovery in the case is still underway.
On February 8, 2005 Judge Kimball ruled that IBM's motions for summary judgment were premature but added:
Viewed against the backdrop of SCO's plethora of public statements concerning IBM's and others' infringement of SCO's purported copyrights to the UNIX software, it is astonishing that SCO has not offered any competent evidence to create a disputed fact regarding whether IBM has infringed SCO's alleged copyrights through IBM's Linux activities.
On June 28, 2006 Judge Brooke Wells granted, in part, IBM's motion to limit SCO's claims and excluded 186 of SCO's 294 items of allegedly misused intellectual property (IBM had challenged 201 of them for various reasons). Wells cited a number of factors including SCO's inability to provide sufficient specificity in these claims:
In December 2003, near the beginning of this case, the court ordered SCO to, "identify and state with specificity the source code(s) that SCO is claiming forms the basis of their action against IBM." Even if SCO lacked the code behind methods and concepts at this early stage, SCO could have and should have, at least articulated which methods and concepts formed "the basis of their action against IBM." At a minimum, SCO should have identified the code behind their method and concepts in the final submission pursuant to this original order entered in December 2003 and Judge Kimball’s order entered in July 2005.
This left about 100 of SCO's items of allegedly misused intellectual property (the merits of which have not yet been judged), out of 294 items originally disclosed by SCO.
Following the partial summary judgment rulings in the SCO vs Novell Slander of Title case, Judge Kimball asked the parties in SCO v IBM to prepare by August 31, 2007 a statement of the status of this case.
Red Hat v. SCO
Red HatRed Hat
Red Hat, Inc. is an S&P 500 company in the free and open source software sector, and a major Linux distribution vendor. Founded in 1993, Red Hat has its corporate headquarters in Raleigh, North Carolina with satellite offices worldwide....
filed suit against SCO on August 4, 2003. Red Hat sued SCO for false advertising, deceptive trade practices and asked for a declaratory judgment of noninfringement of any of SCO's copyrights. This case has been stayed pending resolution of the IBM case.
SCO v. Novell
After SCO initiated their Linux campaign, they said that they were the owners of UNIXUnix
Unix is a multitasking, multi-user computer operating system originally developed in 1969 by a group of AT&T employees at Bell Labs, including Ken Thompson, Dennis Ritchie, Brian Kernighan, Douglas McIlroy, and Joe Ossanna...
. Novell
Novell
Novell, Inc. is a multinational software and services company. It is a wholly owned subsidiary of The Attachmate Group. It specializes in network operating systems, such as Novell NetWare; systems management solutions, such as Novell ZENworks; and collaboration solutions, such as Novell Groupwise...
claimed these statements were false, and that they still owned the rights in question. After Novell registered the copyrights to some key UNIX products, SCO filed suit against Novell on January 20, 2004. Novell removed
Removal jurisdiction
In the United States, removal jurisdiction refers to the right of a defendant to move a lawsuit filed in state court to the federal district court for the federal judicial district in which the state court sits. This is a general exception to the usual American rule giving the plaintiff the right...
the suit to federal court on February 6, 2004.
On July 29, 2005, Novell filed its answer with the court, denying SCO's claims. Novell also filed counterclaims asking the court to force SCO to turn over the revenues it had received from UNIX licenses, less a 5% administrative fee. Additionally, Novell asked the court to place the funds in a "constructive trust" in order to ensure that SCO could pay Novell since the company's assets were depleting rapidly.
On August 10, 2007, Judge Dale Kimball, hearing the SCO v. Novell case, ruled that "...the court concludes that Novell is the owner of the UNIX and UnixWare Copyrights". Novell was awarded summary judgments on a number of claims, and a number of SCO claims were denied. SCO was instructed to account for and pass to Novell an appropriate portion of income relating to SCOSource licences to Sun Microsystems and Microsoft. A number of matters are not disposed of by Judge Kimball's ruling, and the outcome of these are still pending.
On July 16, 2008, the trial court issued an order awarding Novell $2,547,817 and ruled that SCO was not authorized to enter into the 2003 agreement with Sun. On November 20, 2008, final judgment in the case affirmed the August 10 ruling, and added interest of $918,122 plus $489 per diem after August 29, 2008, along with a constructive trust
Constructive trust
A constructive trust is an equitable remedy resembling a trust imposed by a court to benefit a party that has been wrongfully deprived of its rights due to either a person obtaining or holding legal right to property which they should not possess due to unjust enrichment or interference...
of $625,486.90.
On August 24, 2009, the U.S. Court of Appeals for the Tenth Circuit partially reversed the August 10, 2007 district court summary judgment ruling. The appeals court remanded back to trial on the issues of copyright ownership and Novell's contractual waiver rights. The court upheld the $2,547,817 award granted to Novell for the 2003 Sun agreement. On March 30, 2010, after a three-week trial before Judge Ted Stewart, a jury returned a verdict "confirming Novell's ownership of the Unix copyrights."
On June 10, 2010, Judge Ted Stewart denied SCO's motion for another trial and ruled for Novell on all remaining issues.
On July 7, 2010, SCO appealed the new judgments to the United States Court of Appeals for the Tenth Circuit.
On August 30, 2011, the Tenth Circuit Court of Appeals affirmed the District Court ruling in its entirety, rejecting SCO's attempt to re-argue the case before the Court of Appeals.
SCO v. AutoZone
AutoZoneAutoZone
AutoZone is a retailer and distributor of aftermarket automotive parts and accessories. based in Memphis, Tennessee.-History:Originally a division of Memphis-based wholesale grocer Malone & Hyde, the company went under the name Auto Shack...
, a corporate user of Linux
Linux
Linux is a Unix-like computer operating system assembled under the model of free and open source software development and distribution. The defining component of any Linux system is the Linux kernel, an operating system kernel first released October 5, 1991 by Linus Torvalds...
and former user of SCO OpenServer, was sued by SCO on March 3, 2004. SCO claims AutoZone violated SCO's copyrights by using Linux. The suit was stayed pending the resolution of the IBM, Red Hat and Novell cases.
On September 26, 2008, Judge Robert C. Jones lifted the stay, effective December 31, 2008. He initially scheduled discovery for April 9, 2010. SCO filed an amended complaint on August 14, 2009. On August 31, 2009, AutoZone replied, and filed a motion to dismiss in part.
On October 22, 2009, Edward Cahn, SCO's Chapter 11 trustee, sought bankruptcy court approval for an agreement he reached with AutoZone. According to the court filings, the confidential settlement resolves all claims between SCO and AutoZone.
SCO v. DaimlerChrysler
In December 2003, SCO demanded that some UNIX licensees certify certain issues regarding their use of Linux. DaimlerChryslerDaimlerChrysler
Daimler AG is a German car corporation. By unit sales, it is the thirteenth-largest car manufacturer and second-largest truck manufacturer in the world. In addition to automobiles, Daimler manufactures buses and provides financial services through its Daimler Financial Services arm...
, a former UNIX user and current Linux user, did not respond to this demand. On March 3, 2004 SCO filed suit against DaimlerChrysler for violating their UNIX license agreement by failing to respond to the certification request. Almost every claim SCO made has been ruled against in summary judgment. The last remaining issue, that of whether DaimlerChrysler made a timely response, was dismissed by agreement of SCO and DaimlerChrysler in December 2004. SCO retains the right to continue this case at a future date, providing it pays legal fees to DaimlerChrysler.
SCO announces that it will not sue its own customers
On June 23, 2003, SCO sent out a letter announcing that it would not be suing its own Linux customers. In the letter, it states:- "SCO will continue to support our SCO Linux and OpenLinux customers and partners who have previously implemented those products and we will hold them harmless from any SCO intellectual property issues regarding Linux."
SCO and SGI
In August 2003, SCO presented two examples of what they claimed was illegal copying of copyrighted code from UNIX to Linux. One of the examples (Berkeley Packet FilterBerkeley Packet Filter
The Berkeley Packet Filter or BPF provides, on some Unix-like systems, a raw interface to data link layers, permitting raw link-layer packets to be sent and received...
) was not related to original UNIX code at all. The other example did, however, seem to originate from the UNIX code and was apparently contributed by a UNIX vendor, Silicon Graphics. However, an analysis by the Linux community later revealed that:
- The code originated from an even older version of UNIX which at some point was published by Caldera, thus making any claim of copyright infringement shaky.
- The code did not do anything. It was in a part of the Linux kernel that was written in anticipation of a Silicon Graphics architecture that was never released.
- It had already been removed from the kernel two months earlier.
- The contested segment was small (80 lines) and trivial.
SCO and BayStar Capital
In October 2003, BayStar CapitalBayStar Capital
The LRG Capital Funds are managed by LRG Capital Group, LLC. Through its BayStar Capital III Investment Fund, a multi-strategy investment fund, the firm makes direct investments in small-to mid capitalization, public and late-stage private companies, primarily within the technology and life...
and Royal Bank of Canada
Royal Bank of Canada
The Royal Bank of Canada or RBC Financial Group is the largest financial institution in Canada, as measured by deposits, revenues, and market capitalization. The bank serves seventeen million clients and has 80,100 employees worldwide. The company corporate headquarters are located in Toronto,...
invested USD$50 million in The SCO Group to support the legal cost of SCO's Linux campaign. Later it was shown that BayStar was referred to SCO by Microsoft
Microsoft
Microsoft Corporation is an American public multinational corporation headquartered in Redmond, Washington, USA that develops, manufactures, licenses, and supports a wide range of products and services predominantly related to computing through its various product divisions...
, whose proprietary Windows
Microsoft Windows
Microsoft Windows is a series of operating systems produced by Microsoft.Microsoft introduced an operating environment named Windows on November 20, 1985 as an add-on to MS-DOS in response to the growing interest in graphical user interfaces . Microsoft Windows came to dominate the world's personal...
operating system competes with Linux. In 2003, BayStar looked at SCO on the recommendation of Microsoft
Microsoft
Microsoft Corporation is an American public multinational corporation headquartered in Redmond, Washington, USA that develops, manufactures, licenses, and supports a wide range of products and services predominantly related to computing through its various product divisions...
, according to Lawrence R. Goldfarb, managing partner of BayStar Capital: "It was evident that Microsoft had an agenda".
On April 22, 2004, The New York Times reported that BayStar Capital, a private hedge fund
Hedge fund
A hedge fund is a private pool of capital actively managed by an investment adviser. Hedge funds are only open for investment to a limited number of accredited or qualified investors who meet criteria set by regulators. These investors can be institutions, such as pension funds, university...
which had arranged for $50M in funding for SCO in October 2003, was asking for its $20M back. The remainder of the $50M was from Royal Bank of Canada. SCO stated in their press release that they believed that BayStar did not have grounds for making this demand.
On August 27, 2004 SCO and BayStar resolved their dispute.
SCO and Canopy Group
The Canopy GroupCanopy Group
The Canopy Group is an investment firm founded by Ray Noorda, headquartered in Lindon, Utah. It serves as the parent company of various technology companies. One of its most well-known members was the SCO Group...
is an investment group with shares in a trust of different companies. It is a group owned by the Noorda family, also founders of Novell.
Until February 2005, Canopy held SCO shares, and the management of SCO held shares of Canopy. The two parties became embroiled in a bitter dispute when the Noorda family sought to oust board member Ralph Yarro III
Ralph Yarro III
Ralph J. Yarro III is chairman of the board and the largest shareholder in The SCO Group, Inc. Previously, he was CEO of The Canopy Group, Inc....
on claims of misappropriation
Misappropriation
In law, misappropriation is the intentional, illegal use of the property or funds of another person for one's own use or other unauthorized purpose, particularly by a public official, a trustee of a trust, an executor or administrator of a dead person's estate or by any person with a responsibility...
. With internal problems not made public (which included the suicides of Canopy's director of information systems
Information systems
Information Systems is an academic/professional discipline bridging the business field and the well-defined computer science field that is evolving toward a new scientific area of study...
, Robert Penrose, and Val Kriedel, the daughter of Ray Noorda), the Canopy Group agreed to buy back all the shares that SCO had in Canopy in exchange for their SCO shares and cash.
SCO and Canopy Group are now mostly independent, though SCO continues to rent their Utah office space from Canopy.
Microsoft funding of SCO controversy
On March 4, 2004, a leaked SCO internal e-mail detailed how MicrosoftMicrosoft
Microsoft Corporation is an American public multinational corporation headquartered in Redmond, Washington, USA that develops, manufactures, licenses, and supports a wide range of products and services predominantly related to computing through its various product divisions...
had raised up to $106 million via the BayStar referral and other means. Blake Stowell of SCO confirmed the memo was real. BayStar claimed the deal was suggested by Microsoft, but that no money for it came directly from them.
In addition to the Baystar involvement, Microsoft paid SCO $6M (USD) in May 2003 for a license to "Unix and Unix-related patents", despite the lack of Unix-related patents owned by SCO.
This deal was widely seen in the press as a boost to SCO's finances which would help SCO with its lawsuit against IBM.
SCOsource
After their initial claim of copyright infringement in the Linux kernel, The SCO Group started their SCOsourceSCOsource
SCOsource is a business division of The SCO Group that manages its Unix intellectual property. The term SCOsource is often used for SCO's licensing program that allows corporate users of Linux to buy licenses to proprietary Unix technology that SCO claims exists in the Linux operating system...
initiative which sells licenses of SCO's claimed copyrighted software, other than OpenServer and Unixware licenses. After a small number of high profile sales (including one that was denied by the claimed purchaser), SCO claimed to offer corporate users of Linux a license at $699 (USD) per processor running Linux. However, many individuals have found it impossible to buy such a license from SCO. SCO says that participants of the SCOsource initiative are not liable for any claims that SCO makes against Linux users.
The Michael Davidson E-Mail
On July 14, 2005, an email was unsealed that had been sent from Michael Davidson to Reg Broughton (both Caldera International employees) in 2002, before many of the lawsuits. In it, Davidson reported how the company had hired an outside consultant becauseThe consultant was to review the Linux code and compare it to Unix source code, to find possible copyright infringement. Davidson himself said that he had not expected to find anything significant based on his own knowledge of the code and had voiced his opinion that it was "a waste of time". After 4 to 6 months of consultant's work, Davidson says: "...we had found absolutely *nothing*. i.e. no evidence of any copyright infringement whatsoever."
See also
- Timeline of SCO-Linux controversiesTimeline of SCO-Linux controversiesThe SCO Group is currently involved in a dispute with various Linux vendors and users. SCO has initiated a series of lawsuits that will probably define the future of both Linux and Unix. In this campaign SCO is trying to convince the world that Linux violates some of SCO's intellectual properties...
- :Category:SCO-Linux litigation
- CopyfraudCopyfraudCopyfraud is a term used by Jason Mazzone, an Associate Professor of Law at Brooklyn Law School, to describe the use of false claims of copyright to attempt to control works not under one's legal control.-Introduction:Mazzone describes copyfraud as:...
External links
- Groklaw link to Lawrence Goldfarb's declaration to the court
- The SCO Group - Official website
- Free Software Foundation position regarding SCO's attacks 6 essays, by Eben MoglenEben MoglenEben Moglen is a professor of law and legal history at Columbia University, and is the founder, Director-Counsel and Chairman of Software Freedom Law Center, whose client list includes numerous pro bono clients, such as the Free Software Foundation....
, Richard StallmanRichard StallmanRichard Matthew Stallman , often shortened to rms,"'Richard Stallman' is just my mundane name; you can call me 'rms'"|last= Stallman|first= Richard|date= N.D.|work=Richard Stallman's homepage...
, and Bradley Kuhn - Groklaw - An online community dedicated to following the progress of the various lawsuits and investigating the claims SCO makes
- Tuxrocks - An archive of court documents related to the various lawsuits
- SCO Controversy Timeline
- SCO:Without Fear and Without Research
- Linux's lucky lawsuit - Why the SCO lawsuit is a good thing in the long run
- The Michael Davidson Email
- Novell hits back at SCO in Unix dispute
- Fact and fiction in the Microsoft-SCO relationship