The core of the suit filed by the SCO Group against IBM is a set of
breach-of-contract allegations. SCO is saying that IBM, through its
contributions to Linux, has violated the Unix licensing contracts signed
with ATT years ago. SCO's rather broader public claims have tended to
overshadow the much more restricted nature of the actual case at hand, but
that is what the real issue is. IBM has concluded that the time has come
to put an end to those charges, however, and has filed for a partial
summary judgment which would dispose of the contract case. The supporting memorandum
available as a 100-page PDF file. Your editor, who has not had a chance to
rip into this sort of meaty legal document for a while, has been through
the whole thing; the following is a summary of what IBM is saying.
IBM goes on at great length on why it believes the judgment should be
entered. The core of the argument reads this way:
- There is very little of the original Unix code in either AIX or
- Of that code which remains, IBM has contributed none of it to Linux.
- SCO's interpretation of the license, which would give SCO rights over
any code which ever went near AIX or Dynix, is nonsensical. SCO has
no rights over IBM's code which it developed itself.
- Even if the license agreement did, somehow, give SCO those rights,
Novell has the right to waive licensing enforcements, and has done so
in this case.
- SCO, by virtue of continuing to publish the contested code itself, has
forfeited any rights it may have had to keep others from doing so.
- SCO's right to terminate IBM's AIX and Dynix license (the basis of two
of SCO's charges) does not exist, and, if it did, it would be
overridden by Novell's waiver.
As followers of the flotilla of SCO cases have been reminded many
times by now: a motion for a summary judgment must show that there are no disputed
facts at issue. For IBM to prevail here (and avoid a longer trial on these
charges), it must show that all the facts are on the table and are not
contested. The standards are high for this sort of motion; if you want to
short out a real trial and dump a set of charges against you, you must have
a truly convincing argument.
Direct copying of code
The first two points above (direct copying of code) are argued early on, in ¶7:
SCO alleges that it has found approximately 74,000 lines of UNIX
System V code in AIX and approximately 78,000 lines of UNIX System
V code in Dynix... SCO does not contend (and in any case has no
evidence) that IBM has misused any of these lines of code.
One of the best ways of establishing an "undisputed" fact, obviously, is to
use the opposite side's statements against them. IBM does not stop there,
however; the company brought in its own MIT scientist (and a high-profile
one at that: Randall Davis) to compare IBM's Linux contributions against
the SYSV code base. Mr. Davis concluded that, as one might expect, there
is no SYSV code (or even similarities to SYSV code) in IBM's work, which
is, thus, not a derived work of SYSV. The memorandum does not state
whether Mr. Davis developed a deep semantic theory to that effect,
Finally, IBM repeatedly points out that SCO was never able to provide any
examples of SYSV-derived code contributed to Linux, and that SCO is not
arguing that such a contribution has occurred:
Moreover, SCO's responses to IBM's interrogatories do not identify
any UNIX System V source code from which any of the code IBM
contributed to Linux is allegedly derived. Indeed, SCO refused to
provide such information because it "is not part of SCO's
Thus, says IBM, the lack of any direct use of SYSV-derived code in violation of the
license agreement is undisputed.
What the license says
SCO still seems to believe that it has a case, however. That case depends
on a very broad reading of the Unix license contract signed between ATT and
IBM almost 20 years ago. From ¶62:
SCO's contract claims instead rest entirely on the proposition that
"[t]he AIX work as a whole and the Dynix/ptx work as a whole are
modifications of, or are derived from [UNIX] System V". Under
SCO's theory of the case, all of the tens of millions of
lines of code ever associated with any technology found in AIX or
Dynix, even if that code does not contain any UNIX System V code,
is subject to the restrictions of the IBM and Sequent Software
SCO, in other words, claims to own anything which ever might have breathed
the same air as SYSV Unix. This interpretation has been clear for some
time, and IBM has gone to great lengths to get SCO to commit itself (in
court) to that
position. IBM now hopes to demonstrate that, beyond any possibility of
dispute, the license contracts do not give SCO the rights it thinks it has.
The first step in that process was to hold depositions with all of the
people involved in the writing and signing of those contracts. So they
tracked down all of the IBM, Sequent, and (crucially) ATT people who were
involved in the process and queried them about the intent of the license
language. Everybody involved, on both sides of the table, agreed that the
contract was never intended to give ATT (or any of its successors) power
over code which it did not
develop. There are many pages of quotes to this effect. Here is one
example, from Michael DeFazio, who ran ATT's Unix product management,
marketing, and licensing group, and who said:
The [software] agreements did not (and do not) give AT&T, USL,
Novell, or any of their successors or assigns the right to assert
ownership or control over modifications and derivative works
prepared by its licensees, except to the extent of the original
Unix System V source code included in such modifications and
derivative works.... I do not believe that our licensees would
have been willing to enter into the software agreement if they
understood Section 2.01 to grant AT&T, USL, Novell, or their
successors or assigns the right to own or control source code
developed by or for the licensee. (¶90).
Several of the ATT people involved are also quoted as stating, flat out,
that SCO's claims are wrong.
IBM notes that, under New York law (which is the law governing its
agreement with ATT), sworn statements from both parties to a contract are
the most compelling evidence with regard to the intent of the contract.
So, if there were any ambiguity in what the contract means (which, says
IBM, there is not), the testimony from the relevant IBM, Sequent, and ATT
people would be more than sufficient to straighten things out.
Not content with that, however, IBM argues this issue from several other
points. It brings up the old issue of $ echo describing ATT's
intent, and the "side letter" signed with IBM and various other licensees.
ATT also redrafted the paragraph in question at some point; the people
involved stated that the change was only to make the intent clearer, and
did not actually change the license terms. IBM states that SCO's
interpretation of the contract is simply absurd and unreasonable, and thus
not enforceable. And
finally, IBM cites federal copyright law and its provisions regarding
rights over derivative works.
IBM believes that it has shown that there is no possible interpretation of
the ATT license contract which favors SCO's position. But, says IBM, even
if that argument were to fall apart entirely, it doesn't matter: Novell has
waived any alleged breaches by IBM. The agreement between Novell and the
Santa Cruz Operation ("old SCO") is murky in several ways, but it seems
clear that Novell retained the right to shut down enforcement of Unix
license agreements at its will. Says IBM:
Novell's letters to SCO establish as a matter of law that even if
SCO had the right under the IBM and Sequent Software Agreements to
prevent IBM from disclosing its or Sequent's original code, Novell
explicitly waived that right.
If that isn't enough, IBM also claims that SCO, itself, has waived any
enforcement rights through its own distribution of Linux.
In this case, SCO's acts and conduct are plainly inconsistent with
an intention to assert a breach of contract against IBM based on
the code allegedly at issue. Both before and even after SCO sued
IBM, SCO sold to customers and made publicly available on the
Internet the code that it claims IBM improperly contributed to
Linux. Indeed, this code was still available on SCO's website as
recently as August 4, 2004. SCO cannot on the one hand market
and sell the source code IBM contributed to the Linux operating
system, and on the other hand claim that IBM was prohibited by its
licensing agreements from contributing that code to Linux.
In support of this position, IBM has dug up old SCO press releases and such
proclaiming features like journaling filesystems, SMP scalability,
asynchronous I/O, etc. As many people have pointed out over the last year,
SCO has dug itself into a deep hole with its own Linux distribution
Two of SCO's charges against IBM have to do with SCO's "termination" of
IBM's Unix licenses. This termination, says SCO, deprives IBM of the right
to distribute AIX or Dynix. It also, incidentally, is said to deprive all
users of those operating systems the right to keep running them - a risk of
proprietary code that, one assumes, most users were not expecting to have
to deal with.
IBM's motion deals with these actions almost as an afterthought. If IBM
has truly not breached the Unix agreements, then SCO's "termination" is
clearly beyond its powers. IBM states that SCO has no right to terminate
the license in this way in any case, however; quoting Novell:
Pursuant to Amendment No. X, however, Novell and SCO granted IBM
the 'irrevocable, fully paid-up, perpetual right' to exercise of of
the rights under the IBM SVRX Licenses that IBM then held. IBM
paid $10,125,000 for the rights under Amendment No. X. Novell
believes, therefor, that SCO has no right to terminate IBM's SVRX
Licenses, and that it is inappropriate, at best, for SCO to be
threatening to do so.
Even without this argument, however, Novell's waiver of enforcement rights
should be adequate to counteract this "termination."
IBM's motion for a partial summary judgment is thoroughly and
comprehensively argued; the company would appear to have covered all of the
bases. If IBM's argument holds water with the judge, the core of SCO's
case will have been demolished, and the collapse of the entire house of
cards will not be far away. This motion is an ambitious attempt to put an
end to this whole affair.
It is interesting to see which arguments do not appear in this
memorandum. In particular, there is no reference to the whole issue of who
really owns the Unix copyrights other than little digs like saying that SCO
"purports" to have acquired them. The copyright ownership issue could, by
itself, torpedo everything SCO is trying to accomplish. But the ownership
of the copyrights is very much a disputed fact, and, as such, it is not a
useful argument in support of a summary judgment.
If IBM succeeds with this motion, the SCO case is done. It would be far
too soon to conclude that this will come to pass, however. The next step
will be a response from SCO, followed by arguments in front of the judge.
SCO will do its best to drag up facts which, it will claim, remain in
dispute. We may see expert witnesses claiming that, testimony from the
principals involved notwithstanding, the ATT license agreements have a
broader meaning than IBM is claiming. SCO may try to claim that it hasn't
been able to come up with the facts because IBM has been "stalling
discovery." And so on. If SCO can create enough fog around IBM's
arguments, it might just succeed in defeating this motion and forcing the
whole thing to go to a full trial. In that case, we would have to wait
until next year for the outcome.
to post comments)