SCO update [LWN.net]

There has been some movement in a few of SCO's legal cases, so it's time for an update.

Our last episode in the Novell case ended with Judge Kimball dismissing SCO's suit because SCO did not make a claim of actual specific damages. SCO was given 30 days to refile the suit with that little oversight taken care of. SCO's new filing is available in PDF format; it's not clear that the company will get much further this time.

The specific damages alleged include:

Companies are refusing to buy licenses from SCO at this time because it's not clear that SCO owns what it claims to be licensing.
Novell's claims are being cited in various other SCO cases, making it harder for SCO to carry out its legal shakedowns.

That is about it. This discussion may be enough to keep the suit alive for now; it depends on what the judge thinks. Said judge, who, in his previous ruling, said that there was considerable uncertainty in just what the asset purchase agreement transfered, may not be amused by the repeated reference to the "clear and unambiguous terms" that are alleged to have transferred the copyrights to SCO.

The AutoZone case has been put on hold, pending the outcome of the IBM and Novell cases. AutoZone successfully argued that, until the issues in those other cases are decided, there is no point in going forward. This decision makes AutoZone's attempt to move the case to Tennessee moot for now; that motion may be reconsidered at a later time.

SCO was given the opportunity to move for a preliminary injunction, however, if it can show "irreparable" harm which could be mitigated that way. It remains to be seen whether SCO will avail itself of this opportunity. In the mean time, SCO's one attempt to shake down an actual Linux user is stalled. Though, as described in this Groklaw article, the case SCO presented in Nevada centers around its OpenServer libraries, and has little to do with Linux.

In the IBM case, things are heading toward the crucial August 4 hearing on IBM's motion for a partial summary judgment that its Linux activities do not infringe on SCO's copyrights. IBM's position is, essentially, that (1) SCO has certified that its response to IBM's discovery questions regarding allegedly infringing code is complete, and (2) that response contains no examples of infringing code. Thus, IBM says, there are no disputed questions of fact and the judgment can be rendered. Or, alternatively, if SCO now comes forward with some sort of evidence, it should be sanctioned for failing to comply with discovery while falsely certifying that its response was complete.

SCO fears this hearing, even though it has never claimed (in court) that IBM has engaged in direct copyright infringement through its contributions to Linux. An IBM victory would make it impossible for SCO to make such claims in the future, and would go a long way toward establishing the cleanness of Linux in general. So SCO has moved for a dismissal of IBM's motion, or, at the minimum, yet another delay.

SCO's motion has been accompanied by a massive tome of a memorandum in support (available in PDF format); the company had to ask for special permission to submit a memo of this length. With all those words, SCO tries to establish that it didn't really certify that its discovery response was complete, that it needs more time to dig through more of IBM's code (and IBM has been stonewalling), that it has not alleged copyright infringement resulting from IBM's Linux activities, and so on.

There are also a few "examples" of copyright infringement included; these include the ELF code, read-copy-update (which SCO, it seems, now claims directly), the header files, etc. Here's one new example:

The Linux kernel, for example, uses a ULS [user-level synchronization] routine to block and unblock access to shared data. The Linux ULS routine is substantially similar to a ULS routine in UNIX. A Mr. Russel [sic] of IBM helped a Mr. Jamie Lokier contribute the UNIX ULS code into Linux. If SCO had access to IBM's CMVC, then SCO might have discovered that Mr. Russel worked on ULS for IBM, and could have deposed Mr. Russel to determine what specific help he provided in the contribution of ULS to Linux and to whom he provided that help.

SCO is talking about the FUTEX code, which was refined and fed into the kernel by Rusty Russell. It is highly unlikely that Rusty has been anywhere near the AIX code. In any case, the FUTEX code was developed in a very public mode over several months; every step in the process was posted to and discussed on the linux-kernel list. If SCO wishes to press a claim to any piece of the FUTEX code, it should have no trouble pointing out exactly which code and saying when, and by whom, it was contributed.

SCO has also filed a renewed motion to compel discovery, claiming that IBM has not lived up to its obligations. SCO is requesting full access to IBM's revision control system. The company is also trying harder to turn up a "smoking gun" email from one of IBM's executives; the motion memo claims that IBM is being dishonest when it says that these messages do not exist.

The Red Hat case, remember, is currently on hold. The judge in that case had ordered both parties to file a letter every 90 days describing how things are progressing. The first set of letters is now available.

SCO's letter seems motivated by fear of an unfriendly ruling in the IBM case. The company is now backpedaling somewhat on its claims that the IBM case covers "most, if not all" of the copyright issues brought up by Red Hat.

At the same time, since September 2003, SCO has obviously had the opportunity to conduct further investigation of improper contributions to Linux by parties other than IBM. Through that investigation, SCO has discovered significant instances of line-for-line and "substantially similar" copying of code from Unix System V into Linux. That non-IBM conduct is conduct that SCO's complaint in Utah -- by its express terms -- does not challenge or encompass.

SCO has found itself in a bit of a difficult position here. If the IBM case addresses all of the copyright issues, and IBM wins its summary judgment, then the outcome of the Red Hat case (which Red Hat filed to establish its claim that its Linux distributions do not infringe on SCO's copyrights) is clear. If, instead, the IBM case is not so all-encompassing after all, the Red Hat case may be taken off hold and moved forward - and that is not something that SCO wants.

Red Hat's letter responds directly to SCO's, and does not mince words.

SCO's June 17 effort to explain away the numerous inconsistent statements it has made to this Court and to other federal courts around the country again make plain SCO's litigation strategy. SCO's ultimate objective is to delay for as long as possible resolution of the copyright claims that are at the heart of each of the pending lawsuits. By avoiding final adjudication of its copyright claims, SCO can continue to foster fear, uncertainty, and doubt in the marketplace about the long-term viability of Linux.

Red Hat points out that SCO wants the AutoZone case to go forward. If, says Red Hat, the AutoZone case presents sufficiently interesting issues that it should be heard now, Red Hat's case should go forward as well. Whether the judge agrees remains to be seen; given the history of this case, the likelihood of any near-term movement is small.

Finally, for those of you who have not had enough SCO fun, remember that SCO Forum 2004 is happening in Las Vegas, starting on August 1. This will be your chance to attend no end of fascinating sessions, including a keynote speech by "analyst" Rob Enderle. Don't you wish you could be there?

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