This week in SCOland [LWN.net]

As much as we might have wished that the SCO case would have gone away over the last week, it's still there. So here's the obligatory update on what has been happening...

IBM has filed a new set of counterclaims against SCO. The full, new filing is available in PDF format. The new material is relatively small, and makes three points.

The first of those points is a promissory estoppel claim. SCO, says IBM, promised that it would distribute Linux only under the terms of the GPL. IBM, acting on those promises, has now been burned, and has suffered an injury as a result. IBM claims damages to compensate for that injury, but the real purpose of the estoppel claim is to shut SCO up:

In addition to an award of damages, IBM is entitled to declaratory and injunctive relief, including but not limited to a declaration that SCO is not entitled to assert proprietary rights with respect to products distributed by SCO under the GPL except upon the terms set out in the GPL.

"Estoppel" says that a company cannot behave in one way, allow others to act based on that behavior, then change the rules afterwards. IBM is claiming that this is exactly what SCO is trying to do in this situation, and is asking the court to put a stop to it.

The second new counterclaim alleges copyright infringement based on violations of the GPL. This claim is different from (and additional to) the GPL violation claim in IBM's first counterfiling. Whereas the previous claim was a breach of contract claim (SCO did not live up to the obligations it took on when it accepted the GPL), the new one is a pure infringement claim. IBM lists several contributions for which it has registered its copyrights (they include EVMS, dynamic probes, PowerPC support, the Omni print driver, JFS, and others), and claims:

SCO has infringed and is infringing IBM's copyrights by copying, modifying, sublicensing and/or distributing Linux products except as expressly provided under the GPL. SCO has taken copyrighted source code made available by IBM under the GPL, included that code in SCO's Linux products, and copied modified, sublicensed and/or distributed those products other than as permitted under the GPL. SCO has no right - and has never had any right - to copy, modify, sublicense and/or distribute the IBM copyrighted code except pursuant to the GPL.

The last new counterclaim is a request for a declatory judgement along the line of Red Hat's suit. Essentially, IBM is asking the court to make SCO shut up.

SCO's response came in the form of yet another strange press release. SCO has nothing to say about IBM's description of its behavior; instead, the company has gone for a flat-out attack on the GPL:

IBM, not SCO, has brought the GPL into the legal controversy between the two companies. SCO believes that the GPL -- created by the Free Software Foundation to supplant current U.S. copyright laws -- is a shaky foundation on which to build a legal case. By contrast, SCO continues to base its legal claims on well-settled United States contract laws and United States copyright laws.

The GPL has never faced a full legal test, and SCO believes that it will not stand up in court.

We asked SCO how it is that the GPL serves "to supplant current US copyright laws" while its own software licenses do not, but SCO chose not to answer us. Regardless, what SCO hopes to gain by attacking the GPL is unclear; its legal theories on the subject are bizarre at best. But if the GPL fails, then SCO will never have had a valid license to distribute Linux at all. It would be interesting to hear how SCO justifies its continued distribution of the Linux kernel if it believes it lacks a valid license to do so.

Red Hat, meanwhile, has filed a "memorandum in opposition" of SCO's attempt to get Red Hat's lawsuit summarily dismissed. Groklaw has posted the motion in PDF format. Also on Groklaw is this detailed analysis of Red Hat's motion which covers the relevant points.

SCO also claimed that its speech was protected by the First Amendment. Frankly, that argument is so funny it seems pointless to stay up late to explain it to you... Red Hat had to actually research the point and answer it in detail. I'll bet they were rolling on the floor laughing though. Once they pulled themselves together, they point out to the judge that there are laws specifically written that forbid companies from making 'false or misleading statements' about another's product, and it's called the Lanham Act...

As expected, the SCO Group has also expanded the battle to include SGI. Very little has been said in public (we're waiting for the inevitable conference call), but a couple of alert readers found the following in SGI's annual report as filed with the U.S. Securities and Exchange Commission:

We have received a letter from SCO Group alleging that, as a result of our activities related to the Linux operating system, we are in breach of the fully-paid license under which we distribute our IRIX operating system. The letter purports to terminate our UNIX System V license effective October 14, 2003.

SGI believes, like IBM, that its Unix license cannot be terminated in this manner. SCO arguably has a better case against SGI, since SGI did actually allow a small amount of SYSV code to slip into its Linux kernel contributions. SCO will have a hard time talking a tiny infringement involving code that, by some reckoning, is in the public domain into a major case, however.

Speaking of SGI's actions, the company has posted a letter to the Linux community from software VP Rich Altmaier. The letter admits that the ate_malloc() code shown by SCO could have been taken from SYSV, though SGI also reiterates the claim that the code in question may well have entered the public domain. SGI has sent patches to its customers removing the code in question, but it has not stopped there:

Following this occurrence, we continued our investigation to determine whether any other code in the Linux kernel was even conceivably implicated. As a result of that exhaustive investigation, SGI has discovered a few additional code segments (similar in nature to the segments referred to above and trivial in amount) that may arguably be related to UNIX code. We are in the process of removing and replacing these segments.

In other words, the Linux kernel has now been compared to the Unix code base by somebody other than SCO, and it has been given an (almost) clean bill of health.

SGI's letter also denies that SCO has any claim to the XFS filesystem. XFS is explicitly claimed as SGI's work.

It may be that SCO is taking the position that merely because XFS is also distributed along with IRIX it is somehow subject to the System V license. But if so, this is an absurd position, with no basis either in the license or in common sense. In fact, our UNIX license clearly provides that SGI retains ownership and all rights as to all code that was not part of AT&Ts UNIX System V.

The position described is, of course, exactly the claims SCO has made against IBM.

Finally, remember that the SCO City-to-City Tour starts on October 7. Those of you in or near Toronto, Boston, Chicago, Vancouver, Dallas, Orlando, Newark, Minneapolis, St. Louis, Irvine, or Atlanta may want to consider signing up to share your views with the company.

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A clean kernel

Posted Oct 2, 2003 21:09 UTC (Thu) by hingo (subscriber, #14792) [Link]

I think the article and the above comment are making too broad conclusions out of the
SGI letter. As I read the letter, to me it seems that they have gone trough code they
themselves have contributed and are about to remove something they found there. That
does not mean that someone else, outside SGI, could not also have contributed
something dirty and SGI does not say anything about such a possibility.

That being said, I think both SGI and IBM, as well as HP before offering indemnifications,
have in fact done a complete comparison of the kernel and System V to get "the big
picture". And if there was something alarming somewhere, we would probably have heard
it by now. (What happened to Eric's project to do this btw?) I just wanted to point out that
the SGI's letter does not say this.

henrik

A clean kernel

Posted Oct 3, 2003 13:50 UTC (Fri) by N0NB (guest, #3407) [Link]

I intially understood the letter as you did that SGI audited only its submissions to the kernel tree. It's this quote that make me think like LWN and others that a broader audit was conducted, "Following this occurrence, we continued our investigation to determine whether any other code in the Linux kernel was even conceivably implicated."

My concern over old kernel tarballs still stands, however.

- Nate >>