SCO and IBM had a new day in court on February 6, when a hearing was held
to determine whether SCO had complied with IBM's motion to compel
discovery. IBM's position is that SCO has failed to comply. As of this
writing, the judge has not made a ruling. The preliminary indications from
the transcript of the hearing (available
, of course) do not bode well for SCO,
IBM noted in court that SCO is no longer alleging any sort of disclosure of
trade secrets on IBM's part. SCO did provide a small number of
files and line numbers of Linux code which, it says, violates IBM's
contract with SCO. These files were in the expected parts of the kernel:
the read-copy-update code, the JFS filesystem, etc. In every case, the
code in question was indisputably written by IBM, and is owned by IBM.
Some of it is even patented by IBM.
In other words, as we have noted in the past, SCO has been pushed back to
one of its original claims: that it has the right to control the disclosure
of any code which has ever breathed the same air as SYSV Unix. IBM sees
this, of course, and isn't making it easy. From the hearing:
The notion is, Your Honor, that somehow IBM is prohibited from
disclosing that code because in some way it is derived from Unix
System Five. What we asked for in our responses is that they tell
us, if that is the theory, exactly where it is in Unix System Five
that the code derives from.
The point, of course, is that code independently written by IBM does not
derive from SYSV Unix at all. This point has been fairly clear to people
who have been paying attention for some time. For the rest (i.e. SCO and
the bulk of the news media), IBM has to work to get the idea across.
SCO has also requested permission to amend its
complaint against IBM
yet again. If this change is allowed, it will modify the case in some
interesting ways. Much noise has been made in the wider media about the
addition (finally) of a copyright infringement charge. This charge says
nothing about IBM's contributions to Linux, however; instead, SCO claims
infringement because IBM continues to distribute AIX despite having had its
license "terminated" by SCO. Unless SCO can convince a court that IBM has
breached its contracts with SCO, this charge will evaporate.
The charges of export violations have been fleshed out. It seems that SCO
has concluded that IBM's contracts never gave it the right to distribute
Unix code in India. Since Linux is clearly available in India, SCO
concludes that its contract has been breached yet again.
Perhaps most amusing is the new claim of "interference with contract."
Those who have been following this case will recall that Novell has made
some interesting claims, including (1) that it still owns the Unix
copyrights, and (2) that it has the right to keep SCO from terminating
Unix licenses. SCO, it seems, sees the shadowy hand of IBM behind Novell's
actions, and is now charging IBM with causing Novell to act the way it
has. Novell's own interest in the success of Linux seemingly does not
enter into this picture.
Finally, as noted above, the latest version of the complaint deletes the
charge of "misappropriation of trade secrets" which had appeared in earlier
Novell, meanwhile, has sent a
new letter to SCO in an (undoubtedly IBM-directed) attempt to clarify
its view of the "derived works" argument. Novell has dug up some old
communications from AT&T regarding its interpretation of the Unix
licenses and some changes the company made to make that interpretation more
AT&T then followed up by adding to section 2.01 a sentence
clarifying that AT&T "claims no ownership interest in any
portion of such a modification or derivative work that is not part
of a SOFTWARE PRODUCT." Even more clearly, the August 1985 edition
of $ echo explained that this "sentence was added to assure
licensees that AT&T will claim no ownership in the software
that they developed -- only the portion of the software developed
SCO's view of derived works never did seem likely to stand up in Court, but
Novell has thrown up yet another obstacle in SCO's path. Novell also pulls
out its "override clause" from the asset purchase agreement:
Accordingly, pursuant to Section 4.16(b) of the Asset Purchase
Agreement, Novell hereby directs SCO to waive any purported right
SCO may claim to require Sequent (or IBM as its successor) to
treat Sequent Code as subject to the confidentiality obligations
or use restrictions of Sequent's SVRX license.
Novell directs SCO to take these actions by noon, MDT, February 11, 2004,
and to notify Novell that it has done so by that time.
That deadline has passed as of this writing. One assumes that SCO did not
Novell has also filed a motion to dismiss SCO's "slander of title" suit
against it, and another motion to move the case (in case it is not
dismissed) to federal court.
For those who are curious about the Red Hat (Delaware) case: it remains on
hold until the judge gets around to ruling on SCO's motion to dismiss the
suit. The wheels of American justice never move particularly quickly, but
Delaware seems to be especially slow.
The Open Source Development Labs has published another paper on SCO by Eben
Moglen; it is available in PDF
format. This one is about the Novell suit:
Even if one is unsympathetic to SCO, one can't help but feel sorry
for the quandary its lawyers faced in deciding whether to sue
Novell. Had they not done so, their client's ultimate fate would
have been sealed. But suing Novell destroys SCO's licensing
campaign for the present just as fully.
Finally, Don Marti has noted
that the Canopy Group has removed all mention of SCO from its web site and appears to be generally
backing away from SCO. Perhaps Canopy, too, sees the end of the game on
to post comments)