On March 6, 2003, the SCO Group (formerly known as Caldera Systems) filed a $1 billion lawsuit in the US against IBM for allegedly “devaluing” its version of the UNIX operating system. The amount of alleged damages was later increased to $3 billion, and then $5 billion. SCO claimed that IBM had, without authorization, contributed SCO's intellectual property to the codebase of the open source, Unix-like Linux operating system. In May 2003 SCO Group sent letters to members of the Fortune 1000 and Global 500 companies warning them of the possibility of liability if they use Linux.
The claims and counter-claims made by both sides then escalated, with both IBM and Linux distributor Red Hat starting legal action against SCO, SCO threatening Linux users who do not take out SCO UNIX licenses, and SCO suing Novell (see also SCO-Linux controversies), AutoZone and DaimlerChrysler.
On September 30, 2003, Judge Kimball (the presiding federal district judge) granted the SCO Group's request for a delay until February 4, 2004, “to file any amended pleadings or add parties to this action”. The schedule was amended again on July 1, 2005. In December 2006 the trial date was vacated pending the resolution of SCO's litigation with Novell, all parties agreeing that SCO v. Novell would resolve issues relating to SCO v. IBM.
In an “Order Granting in Part IBM's Motion to Limit SCO's Claims” dated June 28, 2006, Judge Brooke Wells (the federal magistrate judge presiding over discovery aspects of the case) barred SCO from asserting 187 of the 298 allegedly misused items that IBM had moved to exclude from the lawsuit for lack of specificity, stating “many of SCO’s arguments and much of Mr. Rochkind’s declaration miss the mark”, and comparing SCO's tactics with those of an officer who accuses a citizen of theft, but will not disclose what the citizen is accused of stealing. “Certainly if an individual was stopped and accused of shoplifting after walking out of Neiman Marcus, they would expect to be eventually told what they allegedly stole. It would be absurd for an officer to tell the accused that ‘you know what you stole I'm not telling.’ Or, to simply hand the accused individual a catalog of Neiman Marcus' entire inventory and say ‘it's in there somewhere, you figure it out.’”
On August 10, 2007 Judge Kimball, who also presides over the SCO v. Novell case, ruled 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".
SCO's claims in press releases and interviews have changed repeatedly as the affair has progressed. SCO has also both claimed and denied that the alleged copyright violations involved the Linux kernel. Computerworld reported Chris Sontag of SCO as saying:
SCO refuses to allow access to the samples of code containing the alleged copyright violations except under a non-disclosure agreement (NDA). SCO's NDA would not only require that the signer keep confidential which lines of code SCO contested, but would also require that they hold confidential any information SCO told them, even if they already knew that information before being informed of it by SCO; all Linux kernel developers have considered this to be far too restrictive, so none of them have signed it. However, at SCO's annual reseller's convention in August 2003 they revealed two short sections of code they alleged were copyright violations, and images of Darl McBride's presentation of this code were soon after published on German computer magazine publisher Heinz Heise's website.
On May 30, 2003, SCO Group's CEO Darl McBride was quoted as saying that the Linux kernel contained "hundreds of lines" of code from SCO's version of UNIX, and that SCO would reveal the code to other companies under NDA in July. To put this into context, David Wheeler's SLOCCount estimates the size of the Linux 2.4.2 kernel as 2,440,919 source lines of code out of over 30 million physical source lines of code for a typical GNU/Linux distribution. Therefore, as per SCO's own estimate, the allegedly infringing code would make up about 0.001% of the total code of a typical GNU/Linux installation. SCO has since upwardly revised this figure to over a million lines of code, however.
SCO's major claims have now been reported as relating to the following components of the Linux kernel:
These claims flow from the accusation of breach of contract. The contract between IBM and AT&T (to which SCO claims to be successor in interest) allows IBM to use the SVR4 code, but the SVR4 code, plus any derivative works made from that code, must be held confidential by IBM. According to IBM's interpretation of the contract, and the interpretation published by AT&T in their "$ echo" newsletter in 1985, "derivative works" means any works containing SVR4 code. But according to SCO's interpretation, "derivative works" also includes any code built on top of SVR4, even if that does not contain, or even never contained, any SVR4 code. Thus, according to SCO, any AIX operating system code that IBM developed must be kept confidential, even if it contains nothing from SVR4.
SCO and its officers have been the subject of much criticism by the free software community, some of whom have stated that SCO's behavior may amount to illegal conduct. SEC filings show that senior SCO executives dumped their personal holdings in SCO shortly after counter-suits were filed by IBM and Red Hat. SCO Group's CEO Darl McBride has been the subject of particular criticism, because of his extreme statements to the press.
On May 16, 2003, Groklaw, a website founded by journalist/paralegal Pamela Jones began covering the SCO litigation on a daily basis, and became a voice for the community to express its views of SCO's claims, as well as being an experiment in applying Open Source principles to legal research. The SCO Group has singled the site out as a particular thorn in its side.
The Inquirer reported on June 15, 2003, that an unnamed Linux kernel programmer has written to SCO, threatening action based on their distribution of a Linux distribution that, according to their own claims, contains code not licensed under the GPL. According to the letter reproduced there, the programmer claimed that SCO's doing so was an infringement of his own copyright. SCO's response to this letter is not known.
On June 27, 2003, Eben Moglen, the counsel for the Free Software Foundation, released a fuller statement regarding the SCO lawsuit. In this statement, he reiterates many of the points made above, and states that:
Univention GmbH, a Linux integrator, reported on May 30, 2003 it was granted an injunction by a Bremen court under German competition law that prohibits the SCO Group's German division from claiming that Linux contains illegally obtained SCO intellectual property. If the SCO Group continued to express this position, they would have to pay a fine of €250,000. A similar injunction was sought around the same time in Poland.
On July 23, Open Source Victoria announced that they had filed a complaint with the Australian Competition and Consumer Commission, "asking the ACCC to investigate the SCO Group's activities in light of their unsubstantiated claims and their extortive legal threats for money against possibly hundreds of thousands of Australians.
Apparently noticing the incongruity of their selling a Linux distribution while suing IBM for stealing their intellectual property and giving it to the developers of that operating system, the SCO Group then announced on May 14, 2003 that they would no longer distribute Linux. According to their press release, "SCO will continue to support existing SCO Linux and Caldera OpenLinux customers and hold them harmless from any SCO intellectual property issues regarding SCO Linux and Caldera OpenLinux products."
SCO currently claims:
SCO originally based its views on the following considerations:
Since the GNU General Public License for the most part disclaims exclusive rights, SCO claimed that its use violates this clause. SCO's argument asks the court to limit both Congress's discretion in implementing the copyright clause, which the Supreme Court refused to do in Eldred v. Ashcroft, and copyright holders' discretion over the enjoyment of their exclusive rights. The GPL specifically prohibits, in section 7, distribution of software in jurisdictions where the laws are incompatible with the GPL, so a ruling that upheld SCO's constitutional argument would prevent distribution of Linux (and other copylefted software) in the United States.
Other commentators disagree however. One such commentator, Tom Carey, partner and chairman of a Boston intellectual property law firm, even went so far as to say "Attacks on the GPL are far-fetched and a little bit desperate." Stacey Quandt, principal analyst at Quandt Analytics, remarked, "SCO's prior claim that the GPL was unconstitutional was equivalent to Microsoft's claims about open source being un-American — totally ridiculous.".
Professor Eben Moglen, on leave from the Columbia University law faculty for the year 2006-2007, speaking as counsel to the Free Software Foundation (FSF) who is responsible for drafting the GPL, also takes this view. He says, "I believe the constitutionality attack on the GPL is not a tenable legal argument but is rather a public relations argument." In a talk at Harvard in February, he addressed the issue of constitutionality by referring to Congress' recent extension of copyright term limits. "It turns out that there's no such thing as an unconstitutional copyright rule," he said, "if Congress passes it, and if it observes the distinction between expression and idea.
Novell entered the controversy by publishing on May 28, 2003, a press release concerning the SCO Group's ownership of UNIX. "To Novell's knowledge, the 1995 agreement governing SCO's purchase of UNIX from Novell does not convey to SCO the associated copyrights," a letter to the SCO Group's CEO Darl McBride said in part. "We believe it unlikely that SCO can demonstrate that it has any ownership interest whatsoever in those copyrights. Apparently you share this view, since over the last few months you have repeatedly asked Novell to transfer the copyrights to SCO, requests that Novell has rejected."
SCO later claimed to have discovered an amendment to their contract with Novell transferring partial ownership to SCO. Novell stated that the amendment "appears to bear a valid Novell signature, and the language, though convoluted, seems to support SCO's claim that ownership of some copyrights for Unix did transfer to SCO"; Novell also said that it could not find its own copy of the amendment.
But in subsequent letters to SCO that Novell released as part of a press release on December 22, 2003, Joseph LaSala Jr., Novell's general counsel, argued that the amendment provided for a copyright transfer only under certain conditions that SCO has allegedly failed to meet.
SCO was quick to dismiss Novell's claims. The same day, during a conference call to discuss SCO's quarterly financial results, SCO CEO Darl McBride said "We see this as a fraudulent filing of copyright notices ... and we'll take the appropriate measures as necessary with our legal team." SCO made good on this threat on January 20, 2004, when it filed SCO v. Novell. On August 10, 2007, Judge Kimball issued a ruling which says in part "the court concludes that Novell is the owner of the UNIX and UnixWare copyrights." This decision is expected to impact the SCO v. IBM since the ruling states that Novell "is entitled, at its sole discretion, to direct SCO to waive its claims against IBM and Sequent".
On June 9, however, Novell privately conversed with SCO expressing their belief that SCO did not have rights to terminate the license. Three days later, Novell cited Section 4.16(b) of their Asset Purchase Agreement (APA) with SCO that gave Novell the ability to intercede in the dispute between SCO and IBM and waived SCO's rights to terminate the license.
On August 10, 2007, Judge Kimball ruled that Novell was the owner of UNIX and thus could waive SCO's termination of IBM's license.
In response to these counterclaims, SCO asserted that the GPL is unenforceable, void, and violates the United States Constitution, but later dropped that claim. If these claims are true, then the GPL'd applications that SCO continues to distribute (like Samba) are being distributed without the permission of the copyright owners of those applications (since the permission was the GPL itself), which would be illegal. Thus some speculate that, in order to remain legally consistent, SCO will claim that software that has been GPL'd is actually in the public domain.
On March 29, 2004 IBM amended its counterclaims again. It dropped one of the patent infringement claims, but added 2 new Declaratory judgments of Noninfringement of Copyrights. One of these seeks a declaration that IBM's AIX-related activities do not infringe any of SCO's copyrights. The other one seeks a similar declaration about IBM's Linux-related activities.
On December 5, 2003, in the first oral arguments relating to the discovery process, a judge granted IBM's two motions to compel against SCO, and deferred consideration of SCO's motions until later. This gave SCO a 30 day deadline to provide "with specificity" which lines of code in Linux they claim form the basis of their case. This was widely regarded as a first-round victory for IBM.
UNIX creator Dennis Ritchie confirms that either he or Ken Thompson wrote the atealloc code, which is released under the BSD licence. It is claimed that SCO removed the original license text from UNIX source, allegedly violating the BSD licence.
SCO Group claimed in a press release to have sent DMCA notification letters alleging copyright infringement. Alleged copies of these letters were posted online. The letters give the names of 65 files in the Linux source code tree which supposedly incorporate "copyrighted binary interfaces". Linus Torvalds then posted a rebuttal on Groklaw.
Court Throws Out SCO's Precious Third Amended Complaint.(SCO v IBM case)(Santa Cruz Operation Inc.)(Brief Article)
Jul 18, 2005; SCO's many critics have had reason to dance in the streets. The court hearing the SCO v IBM case has refused to let SCO file its...