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SCO's Second Amended Complaint, If the Judge Says Yes
Saturday, February 07 2004 @ 10:29 AM EST

SCO's Second Amended Complaint. That's if the judge says yes. UPDATE: He did.

The PDF. For anything important, look at the pdf, as always.

************************************************************

Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE, P.C.
[address, phone]


David Boies
BOIES, SCHILLER & FLEXNER L.L.P
[address]

Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER L.L.P
[address, phone]

Attorneys for Plaintiff The SCO Group, Inc.


IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH


THE SCO GROUP, INC.,
a Delaware corporation,

Plaintiff,

vs.

INTERNATIONAL BUSINESS MACHINES
CORPORATION, a New York corporation,

Defendant.

SECOND AMENDED COMPLAINT

Case No. 03-CV-0294

Hon: Dale A. Kimball

Magistrate Judge Brooke C. Wells



_______________________________________________________________________________

Plaintiff, The SCO Group, Inc., a Delaware corporation (“SCO”), sues Defendant International Business Machines Corporation (“IBM”) and alleges as follows:

Nature of This Action

1. UNIX is a computer operating system program and related software and documentation originally developed by AT&T Bell Laboratories (“AT&T”). UNIX is widely used in the corporate, or “enterprise,” computing environment.

2. Through a series of corporate acquisitions, SCO presently owns all right, title and interest in and to UNIX and UnixWare operating system source code, software and sublicensing agreements, together with copyrights, additional licensing rights in and to UNIX and UnixWare, and claims against all parties breaching such agreements. Through agreements with UNIX vendors, SCO controls the right of all UNIX vendors to use and distribute UNIX. These restrictions on the use and distribution of UNIX are designed to protect the economic value of UNIX.

3. A variant or clone of UNIX currently exists in the computer marketplace called “Linux.” Linux is, in material part, based upon UNIX source code and methods.

4. The UNIX software distribution vendors, such as IBM, are contractually and legally prohibited from giving away or disclosing proprietary UNIX source code and methods for external business purposes, such as contributions to Linux, or from otherwise using UNIX for the benefit of others. This prohibition extends to derivative work products that are modifications of, or derivative works based on, UNIX System V source code or technology. IBM is violating this prohibition, en masse, as though no prohibition or proprietary restrictions exist at all with respect to the UNIX technology. As a result of IBM’s wholesale disregard of its contractual and legal obligations to SCO, Linux 2.4.x and 2.6.x and the development Linux kernel, 2.5.x, are replete with protected technology. As such, the Linux 2.4.x and Linux 2.5.x and 2.6.x kernels are unauthorized derivatives of UNIX System V.

5. This case is not about the debate about the relative merits of proprietary versus open source software. Nor is this case about IBM's right to develop and promote open source software if it decides to do so in furtherance of its independent business objectives, so long as it does so without SCO's proprietary information. This case is, and is only, about the right of SCO not to have its proprietary software misappropriated and misused in violation of its written agreements and well-settled law.

6. As set forth in more detail below, IBM has breached its obligations to SCO, induced and encouraged others to breach their obligations to SCO, interfered with SCO’s business, and engaged in unfair competition with SCO, including by:

a) misusing UNIX software licensed by SCO to IBM and Sequent;

b) inducing, encouraging, and enabling others to misuse and misappropriate SCO’s proprietary software; and

c) incorporating (and inducing, encouraging, and enabling others to incorporate) SCO’s proprietary software into Linux open source software offerings.

7. As a result of these breaches, SCO sent a notice of termination to Mr. Sam Palmisano, the Chief Executive Officer of IBM on March 6, 2003. The termination notice specified that, pursuant to SCO’s contractual rights under controlling agreements, IBM’s right to use or distribute any software product based on UNIX System V technology, including its own version of UNIX known as “AIX,” would be terminated on June 13, 2003, unless such breaches were reasonably cured prior to that time.

8. The termination notice was based, in part, on IBM’s self-proclaimed contributions of AIX source code to Linux, and use of UNIX/AIX methods for accelerating the development of Linux in contravention of IBM’s contractual obligations to SCO.

9. Pursuant to its rights under the controlling agreements, IBM was entitled to 100 days to cure its underlying contractual breaches, provided it was willing and able to do so. Both parties were contractually required to “exert their mutual good faith best efforts to resolve any alleged breach short of termination.”

10. To that end, SCO did everything reasonably in its power to exert a good faith effort to resolve the termination of IBM’s UNIX contract rights. Conversely, during the 100-day period, IBM did not set forth a single proposal or idea for cure.

11. SCO has therefore terminated IBM’s right to use any part of the UNIX System V source code, including its derivative AIX, effective as of June 13, 2003 (the “AIX Termination Date”).

12. For similar reasons and following a similar process, SCO has terminated IBM's right to use any part of Dynix/ptx, also a derivative work of UNIX System V, which was developed under license with SCO, effective as of July 30, 2003 (the "Dynix/ptx Termination Date").

13. As of the AIX Termination Date, IBM is contractually obligated to discontinue use of and return or destroy any and all copies of the Software Products defined in the controlling agreements, which include UNIX System V source code and all its derivatives, including AIX.

14. As of the Dynix/ptx Termination Date, IBM is contractually obligated to discontinue use of and return or destroy any and all copies of the Software Products defined in the controlling agreements, which include UNIX System V source code and all its derivatives, including Dynix/ptx.

Parties, Jurisdiction and Venue

15. Plaintiff SCO is a Delaware corporation with its principal place of business in Utah County, State of Utah.

16. Defendant IBM is a New York corporation with its principal place of business in the State of New York.

17. Sequent Computer Systems, Inc. (“Sequent”) was formerly an Oregon corporation that contracted with SCO’s predecessor in interest, AT&T. Sequent was subsequently merged into IBM in a stock transaction.

18. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §1331, 1332, 1338 and 1367. There is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000, exclusive of interest and costs, and the copyright claims arise under federal law.

19. Venue is properly situated in this District pursuant to 28 U.S.C. §§1391 and 1400.

Background Facts

The UNIX Operating System

20. UNIX is a computer software operating system. Operating systems serve as the link between computer hardware and the various software programs (“applications”) that run on the computer. Operating systems allow multiple software programs to run at the same time and generally function as a “traffic control” system for the different software programs that run on a computer.

21. By way of example, in the personal computing market, Microsoft Windows is the best-known operating system. The Windows operating system was designed to operate on computer processors (“chips”) built by Intel. Thus, Windows serves as the link between Intel-based processors and the various software applications that run on personal computers.

22. In the business computing environment for the Fortune 1000 and other large corporations (often called the “enterprise” environment), UNIX is widely used. As detailed below, before IBM's involvement in and improper contributions to Linux, Fortune 1000 companies were not using Linux for mission critical applications, such as wire transfers and satellite control systems. Linux, as an operating system, simply was incapable of performing such high level enterprise computing before IBM's improper contributions to Linux.

23. The UNIX operating system was originally built by Dennis Ritchie, Ken Thompson and other software engineers at AT&T. After successful in-house use of the UNIX software, AT&T began to license UNIX as a commercial product for use in enterprise applications by other large companies.

24. Over the years, AT&T Technologies, Inc. ("AT&T Technologies"), a wholly owned subsidiary of AT&T, and its related companies licensed UNIX for widespread enterprise use. IBM, Hewlett-Packard, Inc. (“HP”), Sun Microsystems, Inc. (“Sun”), Silicon Graphics, Inc. (“SGI”) and Sequent became some of the principal United States-based UNIX licensees, among many others.

25. IBM, HP, Sun, SGI and the other major UNIX vendors each modified UNIX to operate on their own processors. Thus, for example, the operating system known as “HP-UX” is HP’s version of UNIX. HP-UX is a modification of, and derivative work based on, UNIX System V source code.

26. Similarly, the operating system known as Solaris is Sun’s version of UNIX. Solaris is a modification of, and derivative work based on, UNIX System V source code.

27. SGI’s UNIX-based operating system is known as “IRIX.” IRIX is a modification of, and derivative work based on, UNIX System V source code.

28. IBM’s UNIX-based operating system is known as “AIX.” AIX is a modification of, and derivative work based on, UNIX System V source code.

29. Sequent’s UNIX-based operating system is known as “DYNIX/ptx.” DYNIX/ptx is a modification of, and derivative work based on, UNIX System V source code.

30. The various identified versions of UNIX are sometimes referred to as UNIX “flavors.” All commercial UNIX “flavors” in use today are modifications of, and derivative works based on, the UNIX System V Technology (“System V Technology”).

31. SCO is the sole and exclusive owner of all Software and Sublicensing Agreements that control use, distribution and sublicensing of UNIX System V and all modifications thereof and derivative works based thereon. SCO is also the sole and exclusive owner of copyrights related to UNIX System V source code and documentation and peripheral code and systems related thereto.

32. During the 1990s the enterprise computing market for high-performance workstation computers came to be dominated by UNIX and the primary UNIX vendors identified above, each supplying its own version of the UNIX operating system based on UNIX System V pursuant to the license agreements with SCO's predecessors in interest. UNIX became synonymous with “workstation” computers that typically operated on a RISC processing platform.

33. The RISC processing platform provides high-power computing capabilities at a relatively higher price for “workstation” computing. The alternative to “workstation” computing is commonly known as “desktop” computing on personal computers. The operating system market for “desktop” personal computers is dominated by Microsoft Corporation and its various Windows-based operating system products. The reason for this distinction is that most desktop computers (PC’s) are designed to operate on Intel and Intel-compatible computing platforms. Most workstations are designed to operate on variants of RISC processing platforms and RISC-compatible computing platforms. PC systems and RISC systems are not hardware compatible with each other. Thus, most versions of UNIX will not operate on Intel-based PC’s for desktop computing; and Windows will not operate on RISC-based workstations for enterprise computing.

34. Most of the primary UNIX vendors identified above did not attempt to develop a UNIX “flavor” to operate on an Intel-based processor chip set. This is because the earlier Intel processors were considered to have inadequate processing power for use in the more demanding enterprise market applications.

SCO’s Creation of a Market for Intel – The Genesis of SCO OpenServer

35. As computers grew in popularity to perform business functions, the processing power of Intel-based processor chips also began to increase dramatically. Consistent with Intel founder Gordon Moore’s prediction, computer chips remained inexpensive while exponentially increasing in power and performance.

36. Seeing this emerging trend, it became evident to SCO that Intel chips would gradually gain widespread acceptance for use in the enterprise marketplace.

37. Therefore, while other major UNIX vendors modified UNIX for their respective RISC-based computing platforms, SCO developed and licensed the UNIX-based operating system for Intel-based processors for enterprise use that is now known as “SCO OpenServer.”

38. SCO’s early engineers faced difficult design challenges in modifying UNIX for effective use on an Intel processing platform. The principal design constraint centered on the limited processing power the Intel chip possessed in the early 1980’s. The Intel chip (designed as it was for personal computers) was not nearly as powerful as the enterprise RISC chips used by IBM, Sun, SGI and others in their respective UNIX offerings.

39. Despite the early design constraint of Intel’s limited processing power, SCO was able to develop a version of UNIX for Intel PCs with full multi-processing and multi-user support as well as excellent reliability. A PC running SCO's OpenServer UNIX was a much more viable business application platform than the same PC running any available version of Windows. SCO found an appropriate enterprise market niche for the early versions of SCO OpenServer as a highly reliable platform for business critical applications such as point-of-sale control, inventory control and transactions processing. Intel systems running UNIX were fully capable of performing multi-user business applications and could do so at a much lower cost (and just as reliably) as the proprietary mini-computer hardware sold by other UNIX vendors, such as Sun and IBM.

40. One example of a customer well suited to the earlier version of SCO OpenServer software is McDonald’s Corp. McDonald’s has thousands of stores worldwide and needs all stores to operate on an integrated computing platform for ease of use, immediate access to information and uniformity. However, the actual computing requirements for each individual McDonald’s location are functionally simple—sales need to be tracked and recorded, and inventory functions need to be linked to sales. SCO OpenServer reliably fulfills McDonald’s computing requirements at reduced cost.

41. SCO’s business model for SCO OpenServer provides enterprise customers the reliability, extensibility (ease of adding or changing functionality), scalability (ease of adding processors or servers to increase processing power) and security of UNIX—but on inexpensive Intel processor chips. This combination allowed customers to perform an extremely high number of transactions and, at the same time, gather and present the information from those transactions in an economical and useful way for enterprise decision makers.

42. The simplicity and power of this “UNIX on Intel” business model helped SCO grow rapidly. SCO gained other large enterprise customers such as CitiGroup, K-Mart, Cendant, Target Stores, Texas Instruments, Walgreens, Merck, Sherwin Williams, Radio Shack, Auto Zone, British Petroleum, Papa John’s Pizza, Costco and many others.

43. As Intel’s prominence grew in the enterprise computing market, SCO’s early version of OpenServer also grew into the operating system of choice for enterprise customers who wanted an Intel-based computing solution for a high volume of repetitive, simple computing transactions.

44. SCO OpenServer is based on the original UNIX Software Code developed by AT&T, but was modified by SCO for the functionality described above. Thus, while performing single-function applications, SCO OpenServer did so, and continues to do so, with the 99.999% reliability of UNIX.

45. Over 4,000 separate applications have been written by developers around the world specifically for SCO OpenServer. Most of these applications are vertical applications for targeted functions, such as point-of-sale control for specific industries, inventory control for specific industries, and related functions.

SCO's Development of UnixWare on Intel

46. While the original SCO OpenServer operating system peforms with all the reliability and dependability of other UNIX systems, it was originally designed for the initially low processing power of Intel chips. Therefore, SCO OpenServer does not offer the same level of multiprocessor capabilities that other flavors of UNIX offer.

47. During or about 1993, SCO's predecessor in interest, Novell, Inc. ("Novell"), acquired from AT&T all right, title and interest in and to the UNIX software code, the AT&T Software and Sublicensing Agreements, the copyrights and related and ancillary products. For branding purposes, Novell renamed UNIX as "UnixWare."

48. On or about September 19, 1995, The Santa Cruz Operation, Inc. acquired all right, title and interest in and to UNIX and UnixWare source code, the AT&T Software and Sublicensing Agreements, the copyrights, claims arising after the closing date against any party and all related and ancillary products and rights from Novell, excepting only the right to certain existing ongoing royalty payments which was retained by Novell.

49. From and after September 1995, SCO dedicated significant amounts of funding and a large number of UNIX software engineers, many of whom were original AT&T UNIX software engineers, to upgrade UnixWare for high-performance computing on Intel processors.

50. By approximately 1998, SCO had completed the majority of this task. That is to say, UnixWare had largely been modified, tested and "enterprise hardened" to use Intel-based processors in competition against IBM and Power PC chips, the Sun SPARC chip and all other high-performance computing UNIX platforms for all complex computing demands. The term "enterprise hardened" means to assure that a software product is fully capable of performing under the rigorous demands of enterprise use.

51. SCO was ready to offer large enterprise customers high-end UNIX computing platforms based on inexpensive Intel processors. Given the rapid growth of Intel's performance capabilities and Intel's popularity in the marketplace, SCO found itself in a highly desirable market position. In addition, SCO still had its SCO OpenServer business for retail and inventory-targeted functions, with its 4,000 applications.

52. Prior to the events complained of in this action, SCO was the undisputed global leader in the design and distribution of commercial UNIX-based operating systems on Intel-based processing platforms.

Project Monterey

53. As SCO was poised and ready to expand its market and market share for UnixWare targeted to high-performance enterprise customers, IBM approached SCO to jointly develop a 64-bit UNIX-based operating system for a new 64-bit Intel platform. This joint development effort was widely known as Project Monterey.

54. At this point in time, IBM's UNIX expertise was centered on its own Power PC processor. IBM had little or no expertise on Intel processors.

55. SCO, on the other hand, had over 15 years of expertise in adapting UNIX to Intel based systems. Moreover, SCO had spent the previous 18 months working closely with Intel to adapt its existing UnixWare product to work on the new 64-bit Intel processor. That project, known as "Gemini-64," was well underway when work on Project Monterey was started. In furtherance of, and in reliance on, IBM’s commitment to Project Monterey, which included IBM's commitment to SCO to create joint sales and marketing opportunities, SCO ceased work on the Gemini-64 Project and expended substantial amounts of money and dedicated a significant portion of SCO's development team to Project Monterey. Specifically, plaintiff and plaintiff’s predecessor provided IBM engineers with valuable confidential information with respect to architecture, schematics, and design of UnixWare and the UNIX source code for both 32- and 64-bit Intel-based processors.

56. By about May 2001, all technical aspects of Project Monterey had been substantially completed. The only remaining tasks of Project Monterey involved marketing and branding tasks to be performed substantially by IBM.

57. On or about May 2001, IBM notified plaintiff that it refused to proceed with Project Monterey, and that IBM considered Project Monterey to be “dead.”

The AT&T UNIX Agreements

58. AT&T Technologies originally licensed the UNIX operating system software code to hundreds of software licensees, including defendant IBM, for the UNIX operating system software source code, object code and related schematics, documentation, modifications and derivative works (collectively, the “UNIX Source Code”). To protect the confidential and proprietary source code information, these license agreements, as detailed below, contained strict limitations on use and distribution of UNIX source and binary code. These provisions prohibited licensees from copying or replacing UNIX source code in competing systems that would diminish the value of UNIX.

59. When SCO acquired the UNIX assets from Novell in 1995, it acquired all right, title and interest in and to the UNIX operating system technology, including all claims against any parties relating to any right, property or asset used in the business of developing UNIX and UnixWare. As a result of this acquisition, SCO became the authorized successor in interest to the original position of AT&T with respect to all licensed UNIX software products.

60. There are two primary types of software licensing agreements between AT&T Technologies and its various licensees:

a) The AT&T-related software agreements are collectively referred to hereinafter as the “AT&T UNIX Software Agreements.”

b) The AT&T-related sublicensing agreements are collectively referred to hereinafter as the “AT&T UNIX Sublicensing Agreements.”

The AT&T UNIX Software Agreements and the AT&T UNIX Sublicensing Agreements are sometimes collectively referred to hereinafter as the “AT&T UNIX Agreements.”

61. Plaintiff is successor in interest to, and owner of, all contractual rights arising from and related to the AT&T UNIX Agreements.

The IBM Related Agreements

62. On February 1, 1985, AT&T and IBM entered into certain AT&T UNIX Agreements:

a) Software Agreement Number Soft-00015 (“AT&T / IBM Software Agreement” attached hereto and incorporated herein as Exhibit A);

b) Sublicensing Agreement Number Sub-00015A (“AT&T / IBM Sublicensing Agreement” attached hereto and incorporated herein as Exhibit B).

63. AT&T and IBM also entered into a side letter on that date (“AT&T / IBM Side Letter” attached hereto and incorporated herein as Exhibit C).

64. In addition, AT&T and IBM have entered into nearly 400 supplemental agreements over the years, including Supplement No. 170 (Supplement No. 170 is attached hereto and incorporated herein as Exhibit D). Supplement No. 170 is the document that specifies the royalty amounts and computer CPUs upon which royalty amounts were due to be paid by IBM.

65. Thereafter, Amendment X to Software Agreement SOFT-00015, as amended, was executed on or about October 16, 1996 by and among IBM, The Santa Cruz Operation, Inc. (“SCO”) and Novell, Inc. (“IBM Amendment X” attached hereto and incorporated herein as Exhibit E). Among other things, Amendment X effectuated a royalty buy-out by IBM pursuant to the royalty terms and amounts specified in Supplement No. 170, and it confirmed other restrictions on IBM, including restrictions on the use of source code.

66. Collectively these agreements, side letter and amendment are referred to hereinafter as the “IBM Related Agreements.”

The Sequent Agreements

67. On January 28, 1986, AT&T and Sequent (now merged into IBM through a stock acquisition) entered into certain AT&T UNIX Agreements:

a) Software Agreement Number SOFT-000321 (“Sequent Software Agreement” attached hereto and incorporated herein as Exhibit F);

b) Sublicensing Agreement Number SUB-000321A (“Sequent Sublicensing Agreement” attached hereto and incorporated herein as Exhibit G).

68. The Sequent Software Agreement and the Sequent Sublicensing Agreement are sometimes collectively referred to hereinafter as the “Sequent Agreements.”

69. The IBM Related Agreements and Sequent Agreements collectively identify the "Protected Materials."

Marketplace Value of UNIX

70. UNIX’s value in the enterprise marketplace is largely a function of its reliability, extensibility, and robust performance capability. That is to say, it virtually never needs repair, it performs well under a wide variety of adverse circumstances, and it can be extended throughout an enterprise and across multiple processors to perform unified or disparate tasks in a seamless computing environment. Because of these features, UNIX-based equipment has replaced mainframe computers for all but the most demanding computing tasks. And, because UNIX-based equipment is far cheaper than mainframe computing equipment, a customer who cannot otherwise justify the cost of mainframe computers can otherwise gain the advantages of “supercomputing” operations through use of UNIX-based equipment.

71. One or more of the different versions of UNIX-based operating systems sold by Sun, IBM, SCO, SGI, and others, is the operating system of choice for large enterprise computing operations in virtually 100% of the Fortune 1000 companies.

72. UNIX gained this prominence in the computing marketplace because of twenty years of development and over one billion dollars invested by plaintiff and its predecessors to create a stable, reliable operating system to perform the mission critical work required by large enterprises.

73. The recent rise of the global technology economy has been powered in large part by UNIX. Virtually every mission critical financial application in the world is powered by UNIX, including electronic transfers of funds. Real time stock trades are powered by UNIX. Inventory controls and distributions are powered by UNIX. All major power grids and all major telecommunications systems are powered by UNIX. Many satellite control and defense control systems are powered by UNIX. Virtually every large corporation in the world currently operates part or all of its information technology systems on a UNIX operating system.

74. Based on its value in the marketplace, UNIX has become the most widely used and widely accepted operating system for enterprise, institutional and manufacturing applications throughout the world.

Linux

75. Linux is an operating system variant or clone of UNIX System V Technology. According to leaders within the Linux community, Linux is not just a “clone,” but is intended as a successor to UNIX System V. Linux, unlike UNIX, is distributed without a fee to its users. Moreover, it is developed under and [sic] open source model, meaning that the source code is publicly available to all who want to see or use it.

76. IBM’s entry into the open source community and its concerted efforts to control the community for its own economic benefit have substantially altered the use and impact of Linux.

77. In furtherance of its plan to destroy its UNIX competitors, IBM has announced its intention to make Linux, distributed to end users without a fee, the successor to all existing UNIX operating systems used by Fortune 1000 companies and other large companies in the enterprise computing market.

78. However, as is widely reported and as IBM executives knew, or should have known, a significant flaw of Linux is the inability and/or unwillingness of the Linux process manager, Linus Torvalds, to identify the intellectual property origins of contributed source code that comes in from those many different software developers. If source code is code copied from protected UNIX code, there is no way for Linus Torvalds to identify that fact.

79. As a result, a very significant amount of UNIX protected code and materials are currently found in Linux 2.4.x, Linux 2.5.x and Linux 2.6.x releases in violation of SCO’s contractual rights and copyrights.

The Functional Limitations of Linux Before IBM’s Involvement

80. The first versions of Linux evolved through bits and pieces of various contributions by numerous software developers using single or dual processor computers. Unlike IBM, virtually none of these software developers and hobbyists had access to enterprise-scale equipment and testing facilities for Linux development. Without access to such equipment, facilities and knowledge of sophisticated development methods learned in many years of UNIX development it would be difficult, if not impossible, for the Linux development community to create a grade of Linux adequate for enterprise use.

81. Also, unlike IBM, the original Linux developers did not have access to multiprocessor code or multi-processor development methods needed to achieve high-end enterprise functionality.

82. To make Linux of necessary quality for use by enterprise customers, it needed to be re-designed and upgraded to accommodate complex multi-processor functionality that had taken UNIX nearly 20 years to achieve. This rapid re-design was not feasible or even possible at the enterprise level without (a) a high degree of design coordination, (b) access to expensive and sophisticated design and testing equipment; (c) access to UNIX code and development methods; (d) UNIX architectural experience; and (e) a very significant financial investment. The contributions of IBM, which had access to UNIX System V Protected Materials and years of enterprise level experience, made possible this rapid redesign of Linux for enterprise use.

83. As a result of the foregoing, Linux is a clone of UNIX, including protected UNIX System V Technology, including modifications and derivatives thereof.

IBM’s Scheme

84. As market awareness of Linux evolved, IBM initiated a course of conduct with the purpose and effect of using Linux to unfairly compete in the enterprise market. At that point in time, four important events were occurring simultaneously in the enterprise software computing marketplace:

a)Intel chips were becoming widely demanded by enterprise customers since Intel’s processing power had increased and its cost had remained low;

b) SCO’s market power in the enterprise marketplace was increasing based on the combined capabilities of SCO OpenServer, SCO UnixWare and SCO’s unique position as UNIX on Intel;

a) Sun and Microsoft's market share in the enterprise market continued to grow; and

b) IBM was in the process of evolving its business model from software technology to services.

85. In the process of moving from product offerings to services offerings, IBM dramatically increased its staff of systems integrators to 120,000 strong under the marketing brand “IBM Global Services.” By contrast, IBM’s largest historic competitor as a seller of UNIX software, Sun Microsystems, has a staff of approximately 12,000 systems integrators. With ten times more services-related personnel than its largest competitor, IBM sought to move the corporate enterprise computing market to a services model based on free software on Intel processors.

86. By making the Linux operating system free to end users, IBM could undermine and destroy the ability of any of its competitors to charge a fee for distribution of UNIX software in the enterprise market. Thus, IBM, with its army of Global Services integrators who earn money by selling services, would gain a tremendous advantage over all its competitors who earn money by selling UNIX licenses.

87. To accomplish the end of transforming the enterprise software market to a services-driven market, IBM set about to deliberately and improperly destroy the economic value of UNIX and particularly the economic value of UNIX on Intel-based processors.

88. As detailed elsewhere, IBM misappropriated the confidential and proprietary information from SCO in Project Monterey. IBM also misused its access to the UNIX source code, in violation of the IBM Related Agreements.

89. On or about August 17, 2000, IBM and Red Hat Inc., the leading Linux distributor, issued a joint press release through M2 Presswire announcing, inter alia, as follows:

IBM today announced a global agreement that enables Red Hat, Inc. to bundle IBM’s Linux-based software.

IBM said it would contribute more than 100 printer drivers to the open source community. With these announcements, IBM is making it easier for customers to deploy e-business applications on Linux using a growing selection of hardware and software to meet their needs. The announcements are the latest initiative in IBM’s continuing strategy to embrace Linux across its entire product and services portfolio.

Helping build the open standard, IBM has been working closely with the open source community, contributing technologies and resources.

90. Thereafter, on December 20, 2000, IBM Vice President Robert LeBlanc disclosed IBM’s improper use of confidential and proprietary information learned from Project Monterey to bolster Linux as part of IBM’s long term vision, stating:

Project Monterey was actually started before Linux did. When we started the push to Monterey, the notion was to have one common OS for several architectures. The notion actually came through with Linux, which was open source and supported all hardware. We continued with Monterey as an extension of AIX [IBM UNIX] to support high-end hardware. AIX 5 has the best of Monterey. Linux cannot fill that need today, but over time we believe it will. To help out we’re making contributions to the open source movement like the journal file system. We can’t tell our customers to wait for Linux to grow up.

If Linux had all of the capabilities of AIX, where we could put the AIX code at runtime on top of Linux, then we would.

Right now the Linux kernel does not support all the capabilities of AIX. We’ve been working on AIX for 20 years. Linux is still young. We’re helping Linux kernel up to that level. We understand where the kernel is. We have a lot of people working now as part of the kernel team. At the end of the day, the customer makes the choice, whether we write for AIX or for Linux.

We’re willing to open source any part of AIX that the Linux community considers valuable. We have open-sourced the journal file system, print driver for the Omniprint. AIX is 1.5 million lines of code. If we dump that on the open source community then are people going to understand it? You’re better off taking bits and pieces and the expertise that we bring along with it. We have made a conscious decision to keep contributing.

91. IBM, however, was not and is not in a position legally to “open source any part of AIX that the Linux community considers valuable.” Rather, IBM is obligated not to open source AIX because it contains SCO’s confidential and proprietary UNIX source code, derivative works, modifications and methods.

92. Over time, IBM made a very substantial financial commitment to improperly put SCO’s confidential and proprietary information into Linux, the free operating system. On or about May 21, 2001 IBM Vice President Richard Michos, stated in an interview to Independent Newspapers, New Zealand, inter alia:

IBM will put US $1 billion this year into Linux, the free operating system.

IBM wants to be part of the community that makes Linux successful. It has a development team that works on improvements to the Linux kernel, or source code. This includes programmers who work in the company’s Linux technology center, working on making the company’s technology Linux-compatible.

That team of IBM programmers is improperly extracting and using SCO’s UNIX technology from the same building that was previously the UNIX Technology Center.

93. In a news article issued by e-Business Developer on or about August 10, 2001, the following conduct was attributed to IBM regarding participation in the open source software movement:

Another example is when IBM realized that the open-source operating system (OS) Linux provided an economical and reliable OS for its various hardware platforms. However, IBM needed to make changes to the source to use it on its full range of product offerings.

IBM received help from the open-source community with these changes and in return, released parts of its AIX OS to open source. IBM then sold its mainframes running Linux to Banco Mercantile and Telia Telecommunications, replacing 30 Windows NT boxes and 70 Sun boxes respectively - obviously a win for IBM, which reduced its cost of maintaining a proprietary OS while increasing its developer base. IBM's AIX contributions were integrated into the standard Linux source tree, a win for open source.

94. Again, “IBM’s AIX contributions” consisted of the improper extraction, use, and dissemination of SCO’S UNIX source code, derivative works, modifications and methods.

95. In a news article issued by IDC on or about August 14, 2001, the following was reported:

IBM continued its vocal support of the Linux operating system Tuesday, saying the company will gladly drop its own version of UNIX from servers and replace it with Linux if the software matures so that it can handle the most demanding tasks.

IBM executives speaking here at the company's solutions developer conference outlined reasons for the company's Linux support, pointing to features in the operating system that could push it past UNIX for back-end computing. While they admit that Linux still has a way to go before it can compete with the functions available on many flavors of UNIX, IBM officials said that Linux could prove more cost-effective and be a more user-friendly way to manage servers.

We are happy and comfortable with the idea that Linux can become the successor, not just for AIX, but for all UNIX operating systems, said Steve Mills, senior vice president and group executive of the IBM Software Group, during a news conference.

96. Continuing with its “happy and comfortable” idea that Linux succeeds at the expense of UNIX, on or about January 23, 2003, IBM executive Steve Mills gave a keynote speech at LinuxWorld, a trade show, which was reported by Computer Reseller News, IBM’s Mills: Linux Will be on Par with UNIX in No Time, January 23, 2003, inter alia, as follows:

IBM will exploit its expertise in AIX to bring Linux up to par with UNIX, an IBM executive said Thursday.

During his keynote at LinuxWorld here, IBM Senior Vice President and group executive Steve Mills acknowledged that Linux lags behind UNIX in scalability, SMP support, fail-over capabilities and reliability--but not for long.

‘The pathway to get there is an eight-lane highway,’ Mills said, noting that IBM's deep experience with AIX and its 250-member open-source development team will be applied to make the Linux kernel as strong as that of UNIX. ‘The road to get there is well understood.’

* * *

Mills hinted that the company's full development capabilities will be brought to bear in engineering the Linux kernel to offer vastly improved scalability, reliability and support for mixed workloads--and to obliterate UNIX.

97. The only way that the pathway is an “eight-lane highway” for Linux to achieve the scalability, SMP support, fail-over capabilities and reliability of UNIX is by the improper extraction, use, and dissemination of the proprietary and confidential UNIX source code, derivative works and methods. Indeed, UNIX was able to achieve its status as the premiere operating system only after decades of hard work, beginning with the finest computer scientists at AT&T Bell Laboratories, plaintiff’s predecessor in interest.

98. Based on other published statements, IBM currently has over 7,000 employees involved in the transfer of UNIX knowledge into the Linux business of IBM, Red Hat, Inc. and SuSE Linux AG (the largest European Linux distributor). On information and belief, a large number of the said IBM employees currently working in the transfer of UNIX to Linux have, or have had, access to the UNIX Software Code.

99. Consistent with these public pronouncements, IBM made significant contributions of the Protected Materials, including AIX and Dynix/ptx, in an effort to make Linux enterprise hardened. In violation of the IBM Related Agreements and Sequent Agreements and legal obligations regarding UNIX System V, including maintaining System V source code and any modifications or derivative works in confidence, IBM contributed key technology to Linux for enterprise use. Among the numerous contributions are the AIX Journaling File Systems, the AIX Enterprise Volume Management System, and the Dynix/ptx Read Copy Update technology.

100. The contribution of the Journaling File System ("JFS") was done in a series of "drops" of AIX code identified as "reference files" inside Linux. The first such drop occurred on or about February 2000, with multiple additions and significant follow-up work by IBM since that time to adapt AIX/JFS for enterprise use inside Linux. These drops of reference files do not necessarily become part of the source code in the Linux kernel, but rather are public displays of the Protected Materials so that anyone has access to them and can use them to construct similar file in Linux. The first drop contains (a) a partially functioning port, or transfer, of JFS from AIX to Linux; (b) a set of reference directories (named ref/) which contain the AIX reference version of AIX/JFS; (c) AIX/JFS-related utility files used to maintain and upkeep AIX/JFS; and (d) a set of directories (named directory ref_utils/) which contain the AIX reference version of utilities. Copies of AIX/JFS files into Linux are shown in Table A, below. Table A compares a 1999 version of AIX and shows the following similarities, demonstrating copying of code, structures and/or sequences.

Table A

AIX 9922A_43NIA File Line #s Linux 2.2.12 ref/File Line #s
usr/include/jsf/inode.h 16-37 include/linux/jfs/ref/jfs_inode.h 84-95,
126-138
kernel/sys/vnode.h 109-133 include/linux/jfs/ref/jfs_inode.h 96-122
usr/include/jsf/inode.h 39-40 include/linux/jfs/ref/jfs_inode.h 189-90
usr/include/jsf/inode.h 161-166 include/linux/jfs/ref/jfs_inode.h 414-421
usr/include/jsf/inode.h 172-180 include/linux/jfs/ref/jfs_inode.h 37-48
usr/include/jsf/inode.h 199-205 include/linux/jfs/ref/jfs_inode.h 52-59
usr/include/jsf/inode.h 62-66 include/linux/jfs/ref/jfs_inode.h 286-290
usr/include/jsf/inode.h 72-76 include/linux/jfs/ref/jfs_inode.h 295-302
usr/include/jsf/inode.h 83-158 include/linux/jfs/ref/jfs_inode.h 322-411

These transfers of AIX/JFS to Linux are in violation of the IBM Related Agreements, and are an improper use of AIX for adaptation to a general operating system.

101. IBM has also improperly transferred a UNIX/AIX-based enterprise volume management system ("AIX/EVMS") to Linux. Again, this was done by IBM to transfer enterprise-class capabilities from AIX to Linux, and was a violation of the IBM Related Agreements and IBM's promise not to adapt AIX as a general operating system for a non-IBM company. The purpose of AIX/EVMS is to allow the management of disk storage in terms of logical 'volumes' in a large enterprise environment. Tools with this level of sophistication and performance were entirely unavailable and unknown to the open source development community prior to IBM's improper transfer to Linux. The actual transfer "patch" by IBM can be found at http://www.sourceforge.net/project/showfiles.php?group_id=25076&package_id=17436. The first code drop of AIX/EVMS by IBM was v0.0.1, which occurred on 03/21/2001. The first major release of AIX/EVMS by Linux was v1.0.0, in Linux 2.4, which occurred on 03/27/2003. The latest Linux release version of AIX/EVMS is v2.2.1, which occurred on 12/20/2003. The following table, Table B, identifies the AIX/EVMA "patches" of source code improperly transferred by IBM to the Linux 2.4 version.

Table B

AIX MERCED/9922A_43NIA Line #s EVMS 1.0.0 patches to Linux 2.4.x Line #s
kernel/sys/IA64/bootrecord.h 64-170 include/linux/evms/evms_aix.h 157-263
usr/include/liblvm.h 234-250 include/linux/evms/evms_aix.h 311-327
usr/include/liblvm.h 252-272
289-307
include/linux/evms/evms_aix.h 329-349
usr/include/liblvm.h 316-363 include/linux/evms/evms_aix.h 352-400
usr/include/lvmrec.h 24-92 include/linux/evms/evms_aix.h 266-294
usr/include/lvm.h 26-35 include/linux/evms/evms_aix.h 6-11
kernel/sys/hd_psn.h 32 include/linux/evms/evms_aix.h 26
kernel/sys/vgsa.h 37,
56-73
include/linux/evms/evms_aix.h 13,
300-309

102. As with the other violations described herein, these transfers by IBM constitute improper use of AIX for and by others, improper transfers of AIX to others, and improper adaptation of AIX as a general operating system for a non-IBM company under the restrictions of the IBM Related Agreements. In disregard of the IBM Related Agreements, IBM has transferred this key enterprise technology from AIX to Linux.

104. Sequent also had certain contractual obligations and restrictions on its use of the UNIX System V code that it licensed from AT&T, SCO's predecessor. These restrictions, which are more fully stated in the Sequent Agreements, also restricted Sequent's use of the modifications they made to UNIX System V and derivative works of UNIX System V, including Sequent's Dynix/ptx. Like IBM, Sequent agreed to restrictions on Dynix/ptx, including that Dynix/ptx for or by others, and that it would not transfer any part of Dynix/ptx to parties who do not have a UNIX System V source code agreement with SCO. Sequent also agreed that they would maintain all of Dynix/ptx in confidence. In violation of these contractual restrictions, IBM provided entire files of Dynix/ptx source code as a patch to Linux 2.4.1-01, including Read Copy Update ("RCU").

105. RCU is a mechanism that can significantly improve the performance and scalability of multi-processor systems by allowing simultaneous access to data without the need for expensive and time consuming locking protocols. Dynix/ptx/RCU structures and sequences were originally offerred as a patch to the Linux 2.4 kernel by IBM, with rather limited functionality inside Linux 2.4. However, in the development of Linux version 2.6, the deployment of Dynix/ptx/RCU structures and sequences has spread into new uses inside Linux, including networking, device drivers, list management, and directory access. This demonstrates how improper contribution of a few hundred lines from Dynix/ptx has had a massive impact on Linux kernel efficiency, particularly relating to multi-processor functionality and processor memory synchronization. Virtually the entirre files identified in Table C that originated in Dynix/ptx were published as a patch to Linux 2.4.1-01, with only minimal changes.

Table C
DynixV v4.6.1 Files Linux 2.4.1-01 files
kernel/sys/rclock.h include/linux/rclock.
kernel/os/rclock.c kernel/rclock.c
kernel/sys/kma_defer.h include/linux/kmemdef.h
kernel/os/kma_defer.c kernel/kmemdef.c

106. As stated, the entire files specified above show direct line-by-line copying of the files with the same name in Dynix as in Linux, with slight changes made to reflect some variations between the two operating systems. That the code in Linux comes from Dynix/ptx is further confirmed by the commentary in the Linux patch that expressly states that it is "[b]ased on a Dynix/ptx implementation by Paul McKenney..." Mr. McKenney was formerly an engineer at Sequent, and is now employed at IBM following IBM's acquisition of Sequent. After the first initial improper contribution of RCU by IBM, RCU became more widespread in the Linux kernel.

107. Code from Dynix/ptx files, but less than the entire file, was also copied line-for-line from DynixV v4.6.1 to Linux 2.4.1-01, with the file name and file line number in each code base identified appropriately.

Table D
DynixV v4.6.1 Files Line #s Linux 2.4.1-01 files Line #s
kernel/os/kern_clock.c 2028-2059 arch/i386/kernel/apic.c 25-28, 662-664
676-684
kernel/os/kern_clock.c 2028-2059 kernel/timer.c 26-29, 681-683
688-697
kernel/i386/locore.s 1487-1497 arch/i386/kernel/entry.S 199-205
kernel/i386/trap.c 1554-1563 arch/i386/kernel/traps.c 52-54, 244-247,
331-334, 542-545,
659-662, 718-721
kernel/i386/startup.c 2054 init/main.c 30-33, 609-616

108. Although the actual count of lines of code in each of these contributions appears small, the impact is significant for a number of reasons: (a) In the case of JFS and EVMS, the number of lines that can be conclusively proven with the evidence currently available is shown. ther is much more copying that is anticipated to be found in discovery; (b) In the case of RCU, a highhly valuable and effective technological improvement can be expressed rather succinctly in computer code; and (c) In most cases, simple changes to code can have far reaching effects, and once the technology is revealed, thousands of developers can apply the technology to a myriad of places in the kernel.

IBM’s Coordination of Linux Development Efforts

109. On information and belief, IBM has knowingly induced, encouraged, and enabled others to distribute proprietary information in an attempt to conceal its own legal liability for such distributions:

What is wrong about this [Linux] distribution, is basically the millions of lines of code that we never have seen. We don’t know if there are any patent infringements [in this code] with somebody we don’t know. We don’t want to take the risk of being sued for a patent infringement. That is why we don’t do distributions, and that’s why we have distributors. Because distributors are not so much exposed as we are. So that’s the basic deal as I understand it.

Karl-Heinz Strassemeyer, IBM The Register, 11/19/2002, www.theregister.co.uk/content/4/28183.html

110. IBM is affirmatively taking steps to destroy all value of UNIX by improperly extracting and using the confidential and proprietary information it acquired from UNIX and dumping that information into the open source community. As part of this effort, IBM has heavily invested in the following projects to further eliminate the viability of UNIX:

a)The Linux Technology Center was launched in 2001 with the intent and foreseeable purpose of transferring and otherwise disposing of all or part of UNIX, including its derivative works, modifications and methods, into an open source Linux environment;

b) The IBM Linux Center of Competency was launched to assist and train financial services companies in an accelerated transfer of UNIX to Linux with the advertised intent and foreseeable purpose of transferring and otherwise disposing of all or part of UNIX, including its derivative works, modifications and methods into open source.

c)A carrier-grade Linux project has been undertaken to use UNIX source code, derivative works, modifications and methods for the unlawful purpose of transforming Linux into an enterprise-hardened operating system;

d) A data center Linux project has been undertaken to use UNIX source code, derivative works, modifications and methods for the unlawful purpose of transforming Linux into an enterprise-hardened operating system; and

e)Other projects and initiatives have been undertaken or supported that further evidence the improper motive and means exercised by IBM in its efforts to eliminate UNIX and replace it with free Linux.

109. But for IBM’s coordination of the development of enterprise Linux, and the misappropriation of UNIX to accomplish that objective, the Linux development community would not have timely developed enterprise quality software or customer support necessary for widespread use in the enterprise market.

FIRST CAUSE OF ACTION

(Breach of IBM Software Agreement)

110. Plaintiff incorporates and re-alleges paragraphs No. 1-109, above.

111. As set forth above, SCO is the successor to AT&T under that certain Software Agreement originally executed by and between AT&T and IBM designated as SOFT-00015. The Software Agreement specifies the terms and conditions for use of UNIX System V source code, documentation and methods related thereto, together with modifications and derivative works created by IBM based on UNIX System V (collectively, the "Software Products").

112. With respect to the rights granted for use of the Software Products under Section 2.01 of the Software Agreement, IBM received the following:

[A] personal, nontransferable and nonexclusive right to use in the United States each Software Product identified in the one or more Supplements hereto, solely for Licensee’s own internal business purposes and solely on or in conjunction with Designated CPUs for such Software Product. Such right to use includes the right to modify such Software Product and to prepare derivative works based on such Software product, provided the resulting materials are treated hereunder as part of the original Software Product. [Emphasis added.]

113. IBM has violated §2.01 of the Software Agreement by, inter alia, using and assisting others to use the Software Products (including System V source code, derivative works, documentation rrelated thereto and methods based thereon) for external purposes that are different from, and broader than, IBM’s own internal business purposes. By actively supporting, assisting and promoting the transfer of UNIX technology to Linux, and using its access to UNIX technology to accomplish this objective, IBM is (a) using the Software Product for external business purposes, which include use for the benefit of Linus Torvalds, the general Linux community and IBM’s Linux distribution partners, Red Hat, Inc., Novell, Inc., SuSE Linux AG and their respective subsidiaries; and is (b) directly and indirectly preparing unauthorized derivative works based on the Software Products and unauthorized modifications thereto in violation of §2.01 of the Software Agreement.

114. In addition, § 2.01 limited use to the United States. This limitation was modified in the Side Letter to include other countries, but at no time was IBM granted the right to use the Software Products (including System V source code, derivative works, modifications, documentation related thereto and methods based thereon) in India. On information and belief, IBM has violated this restriction by allowing the Protected Materials to be used in India.

115. IBM agreed in §2.05 of the Software Agreement to the following restrictions on use of the Software Product (including System V source code, derivative works and methods based thereon):

No right is granted by this Agreement for the use of Software Products directly for others, or for any use of Software Products by others.

116. IBM has breached §2.05 of the Software Agreement by, inter alia, actively promoting and allowing use of the Software Products, documentation and development methods related thereto in an open and hostile attempt to destroy the entire economic value of the Software Products and plaintiff’s rights to protect the proprietary nature of the Software Products. By way of example and not limitation, IBM has used protected UNIX source code, documentation, development notes and methods for others in accelerating development of the 2.4.x kernel and above in, among others, the following areas: (a) scalability improvements, (b) performance measurement and improvements, (c) serviceability and error logging improvements, (d) NUMA scheduler and other scheduler improvements, (e) Linux PPC 32- and 64-bit support, (f) AIX Journaling File System, (g) enterprise volume management system to other Linux components, (h) clusters and cluster installation, including distributed lock manager and other lock management technologies, (i) threading, (j) general systems management functions, and (k) other areas. But for the use by IBM of these protected UNIX methods in Linux development, the Linux 2.4.x kernel, 2.5.x kernel, and 2.6.x kernel's capacity to perform high-end enterprise computing functions would be severely limited.

117. IBM agreed in §7.10 of the Software Agreement to the following restrictions on transfer of the Software Product, including AIX as a derivative work of UNIX System V:

[N]othing in this Agreement grants to Licensee the right to sell, lease or otherwise transfer or dispose of a Software Product in whole or in part.

118. IBM has breached §7.10 of the Software Agreement by, inter alia, transferring portions of the Software Product (including System V source code, documentation, modifications, derivative works and methods based thereon), including but not limited to the AIX Journaling File System and all other UNIX-based source code publicly announced by IBM, to Linus Torvalds for open distribution to the general public under a software license that destroys the proprietary and confidential nature of the Software Products.

119. IBM has further stated its intention to transfer the entirety of AIX into open source in anticipatory violation of its obligations under §7.10 of the Software Agreement.

120. IBM agreed in Side Letter ¶9, a substitute provision to §7.06(a) of the Software Agreement, to the following restrictions on confidentiality of the Software Product, including AIX as a derivative work of UNIX System V:

Licensee agrees that it shall hold Software Products subject to this Agreement in confidence for AT&T. Licensee further agrees that it shall not make any disclosure of such Software Products to anyone, except to employees of Licensee to whom such disclosure is necessary to the use for which rights are granted hereunder. Licensee shall appropriately notify each employee to whom any such disclosure is made that such disclosure is made in confidence and shall be kept in confidence by such employee.

121. In recognition of SCO’s right of confidentiality of the Software Products, IBM directs all customers who need to view AIX source code to first obtain a “read only” source code license from SCO as a condition to viewing any part of AIX. For example, SCO received a letter on or about March 4, 2003 from Lockheed Martin Corporation requesting verification of the existence of a Software Agreement by and between Lockheed and SCO as a condition to Lockheed obtaining access to view AIX source code. The letter stated, in part, as follows:

LMATM is in the process of licensing [AIX] from IBM to be used for integration purposes only. Per the attached supplement to the subject document, contained within the AIX source code is third party IP which must be licensed from the owner prior to IBM providing the AIX source code to any licensee (see Prerequisite Source Licenses, Para.2.2).

* * *

2.2 Prerequisite Source License. IBM cannot disclose (includes viewing) certain Third-Party Source Code to any party who does not have a license that permits access to the Code. Prior to receiving or accessing the Source Code described above in this Supplement, LMATM must obtain the following Source Code Licenses:

a) AT&T Technologies, Inc., AT&T Information Systems, Inc., or UNIX ™ Systems Laboratory Software Agreement No. SOFT---and AT&T Information Systems, Inc. Software Agreement Supplement for Software Product AT&T UNIX System V Release 4.0, or AT&T Information Systems, Inc. Schedule for Upgrades (from UNIX System V Release 3.1 to UNIX System V Release 3.2 or from UNIX System V Release 3.1 International Edition to UNIX System V Release 3.2 International Edition) or equivalent SCO Group License.

122. IBM has breached its obligation of confidentiality, and has failed to otherwise hold the Software Products in confidence for SCO by contributing portions of the Software Product (including System V source code, modifications, derivative works and methods based thereon, together with documentation and development notes) to open source development of Linux and by using UNIX development methods in making modifications to Linux 2.4.x kernel and above, which are in material part, unauthorized derivative works of the Software Product. These include, among others, (a) scalability improvements, (b) performance measurement and improvements, (c) serviceability and error logging improvements, (d) NUMA scheduler and other scheduler improvements, (e) Linux PPC 32- and 64-bit support, (f) AIX Journaling File System, (g) enterprise volume management system to other Linux components, (h) clusters and cluster installation, including distributed lock manager and other lock management technologies, (i) threading, (j) general systems management functions, and (k) others.

123. IBM has further stated its intention to transfer the entirety of AIX into open source in anticipatory violation of its obligations under §7.06 (a) of the Software Agreement.

124. Export of UNIX technology is controlled by the United States government. Thus, SCO, IBM and all other UNIX vendors are subject to strict export control regulations with respect to any UNIX-based customer distribution. To this end, IBM agreed in §4.01 of the Software Agreement to restrictions on export of the Software Product (including System V source code, derivative works, modifications, and methods based thereon), as follows:

Licensee agrees that it will not, without the prior written consent of AT&T, export, directly or indirectly, Software Products covered by this Agreement to any country outside of the United States.

This provision was later modified to allow export rights to several countries outside the United States. However, no permission has ever been granted by SCO or its predecessors to IBM to allow it to indirectly make available all or portions of the Software Product to countries outside the United States that are subject to strict technology export control by the United States government: viz., Cuba, Iran, Syria, North Korea and Libya. IBM is ignoring and attempting to circumvent the export control restrictions that apply to UNIX as it accelerates development of Linux for enterprise use.

125. Thus, IBM has breached §4.01 of the Software Agreement by, inter alia, making extensive, advanced multiprocessor scaling functions of the Software Product, including derivative works and methods based thereon, available for free distribution to anyone in the world with a computer. As it relates to Linux 2.4.x and above releases, IBM is indirectly making the Software Product and operating system modifications available to countries and organizations in those countries for scaling single processor computers into multi-processor supercomputers that can be used for encryption, scientific research and weapons research.

126. IBM was aware of the importance of these restrictions and the need to protect the confidentiality of UNIX System V, including modifications and derivatives such as AIX and Dynix/ptx. Indeed, Amendment X, Paragraph 3.7, provides examples under which IBM is entitled to disclose UNIX and AIX source code to its development partners -- and examples under which IBM is not entitled to make such disclosures. Paragraph 3.7 of Amendment X provides as follows:

The following illustrations arre intended to clarify and illustrate the relief provided in Subsection 2.1 of this Amendment [relating to disclosure of source code to contractors].

Company A, sublicensee of the Sublicensed Product [AIC] is a general computing system manufacturing firm. IBM may distribute Source Copies to Company A for Authorized Purposes.

However, IBM may not distribute Source Copies to Company A for purposes of making modifications to adapt the Sublicensed Products [AIX] as a general operating systtem for Company A's general computer hardware system. (Emphasis added).

127. As is made perfectly clear in Paragraph 3.7 of Amendment X, IBM may not use any Sublicensed Product from SCO, including AIX, for the purposed of making modifications to adapt AIX as a competing general operating system. IBM nonetheless has chosen to adapt UNIX, AIX, and Dynix/ptx for use in a competing operating system (i.e. Linux) in violation of its obligations to SCO.

128. SCO has the self-executing contractual right to terminate IBM’s right to use and distribute the Software Product, including derivative works and methods based thereon, if IBM fails to fulfill one or more of its obligations under the Software Agreement. This authority is contractually granted under the following provisions of the IBM Related Agreements:

If Licensee fails to fulfill one or more of its obligations under this Agreement, AT&T may, upon its election and in addition to any other remedies that it may have, at any time terminate all the rights granted by it hereunder by not less than two (2) months’ written notice to Licensee specifying any such breach, unless within the period of such notice all breaches specified therein shall have been remedied; upon such termination Licensee shall immediately discontinue use of and return or destroy all copies of Software Products subject to this Agreement. [Software Agreement, §6.03]

Regarding Section 6.03 of the Software Agreement and Sections 2.07 and 3.03 of the Sublicensing Agreement, we will not terminate your rights for breach, nor will we give notice of termination under such Sections, for breaches we consider to be immaterial. We agree to lengthen the notice period referenced in such Sections from two (2) months to one hundred (100) days. If a breach occurs that causes us to give notice of termination, you may remedy the breach to avoid termination if you are willing and able to do so. In the event that a notice of termination is given to you under either of such Sections and you are making reasonable efforts to remedy the breach but you are unable to complete the remedy in the specified notice period, we will not unreasonably withhold our approval of a request by you for reasonable extension of such period. We will also consider a reasonable extension under Section 2.07 of the Sublicensing Agreement in the case of a Distributor who is making reasonable efforts to remedy a breach.

In any event our respective representatives will exert their mutual good faith best efforts to resolve any alleged breach short of termination. [Side Letter, ¶ 5]

129. Consistent with these rights, on March 6, 2003, plaintiff delivered a notice of termination to Sam Palmisano, Chief Executive Officer of IBM (the “AIX Termination Notice”) for IBM’s breaches of the Software (and Sublicensing) Agreement by IBM.

130. Following delivery of the AIX Termination Notice, plaintiff took every reasonable step to meet and confer with IBM regarding IBM’s breach of the Software Agreement and Related Agreements.

131. IBM has disregarded SCO's rights under the IBM Related Agreement by failing to undertake any efforts to cure its numerous and flagrant violations thereunder. As a result, effective June 13, 2003, the IBM Related Agreements are terminated and IBM has no further rights thereunder.

132. IBM nonetheless continues to operate under the IBM Related Agreements, and use the Software Products and Source Code thereunder as though its rights under the Agreement have not been terminated.

133. IBM no longer has any right to use the UNIX Software Code or make modifications or derivative works thereunder. In fact, IBM is contractually obligated to “immediately discontinue use of and return or destroy all copies of Software Products subject to this Agreement.”

134. As a result of IBM’s breaches before termination, SCO has been damaged in the marketplace for violations by IBM in an amount to be proven at trial, but not less than $1 billion.

135. In addition, and to the extent that IBM continues to completely repudiate its obligations regarding the Software Product, plaintiff will sustain substantial continuing and ongoing damages. These damages include the full amount IBM receives as a result of its ongoing sales of AIX, including software, services and hardware.

136. Moreover, if IBM does not return or destroy all source and binary copies of the Software Products and/or continues to contribute some or all of these protected materials to open source, SCO will be irreparably harmed. As a result, SCO is entitled to a permanent injunction requiring IBM to return or destroy all source code and binary copies of the Software Products and/or prohibiting IBM from further contributions of the protected Software Products into open source.

SECOND CAUSE OF ACTION

(Breach of IBM Sublicensing Agreement)

137. Plaintiff incorporates and re-alleges paragraphs No. 1-136, above.

138. As set forth above, SCO is the successor to AT&T under that certain Sublicensing Agreement originally executed by and between AT&T and IBM designated as SUB-00015A. The Sublicensing Agreement grants the right to distribute object-based code of UNIX System V and modifications thereto and derivative works based thereon.

139. SCO has terminated IBM’s right to use and distribute the Software Product, including derivative works and methods based thereon as of the AIX Termination Date, June 13, 2003.

140. From and after the AIX Termination Date, any and all distributions of AIX by IBM are in violation of the Sublicensing Agreement.

141. IBM has disregarded and continues to completely disregard and repudiate its obligations under the Sublicensing Agreement, to plaintiff's substantial, continuing and ongoing damage. These damages include the full amount IBM receives as a result of its ongoing sales of AIX, including software, services and hardware.

142. Moreover, if IBM does not return or destroy all source and binary copies of the Software Products and/or continues to contribute some or all of these protected materials to open source, SCO will be irreparably harmed. As a result, SCO is entitled to a permanent injunction requiring IBM to return or destroy all source code and binary copies of the Software Products and/or prohibiting IBM from further contributions of the protected Software Products into open source.

THIRD CAUSE OF ACTION

(Breach of Sequent Software Agreement)

143. Plaintiff incorporates and re-alleges paragraphs No. 1-142, above.

144. As set forth above, SCO is the successor to AT&T under that certain Software Agreement originally executed by and between AT&T and Sequent designated as SOFT-000321. The Software Agreement specifies the terms and conditions for use of UNIX System V source code, documentation and methods related thereto, together with mmodifications and derivative works created by IBM/Sequent based on UNIX System V (collectively, the "Software Products").

145. With respect to the scope of rights granted for use of the System V source code under Section 2.01 of the Sequent Software Agreement, Sequent received the following:

[A] personal, nontransferable and nonexclusive right to use in the United States each Software Product identified in the one or more Supplements hereto, solely for Licensee’s own internal business purposes and solely on or in conjunction with Designated CPUs for such Software Product. Such right to use includes the right to modify such Software Product and to prepare derivative works based on such Software product, provided the resulting materials are treated hereunder as part of the original Software Product. [Emphasis added.]

146. IBM has violated §2.01 of the Sequent Software Agreement by, inter alia, modifying and assisting others to modify the Software Products (including System V source code, derivative works, documentation related thereto and methods based thereon) for purposes other than Sequent and/or IBM’s own internal business purposes. By actively supporting, assisting and promoting the transfer from UNIX to Linux, and using its access to UNIX technology to accomplish this objective, IBM is (a) using the Software Product for external business purposes, which include use for the benefit of the Open Source Development Laboratory ("PSDL"), IBM's various joint venture partners in OSDL, Linus Torvalds, the general Linux community and IBM’s Linux distribution partners, Red Hat, Inc., Novell, Inc. and SuSE Linux AG and their respective subsidiaries; and is (b) directly and indirectly preparing unauthorized derivative works based on the Software Product and unauthorized modifications thereto in violation of §2.01 of the Sequent Software Agreement.

147. In addition, Section 2.01 limited use to the United States. At no time was Sequent granted the right to use the Software Products (including System V source code, derivative works, modifications, documentation related thereto and methods based thereon) in India. On information and belief, IBM has violated this restriction by allowing the Protected Materials to be used in India.

148. Sequent agreed in §2.05 of the Software Agreement to the following restrictions on use of the Software Product (including System V source code, modifications, derivative works, documentation related thereto and methods based thereon):

No right is granted by this Agreement for the use of Software Products directly for others, or for any use of Software Products by others.

149. IBM has breached Sequent’s obligations under §2.05 of the Sequent Software Agreement by, inter alia, actively promoting and allowing use of the Software Products and development methods related thereto in an open and hostile attempt to destroy the entire economic value of the Software Products and plaintiff’s rights to protect the proprietary nature of the Software Products. Particularly, IBM has caused all or materially all of DYNIX/ptx-based NUMA source code and methods, and RCU source code and methods, to be used for the benefit of Linux. But for the use by IBM of these protected UNIX methods in Linux development, the Linux 2.4.x kernel through 2.6.x kernel's capacity to perform high-end enterprise computing functions would be severely limited.

150. IBM has even gone so far as to publish the DYNIX/ptx copyright as part of the source code and documentation contribution of UNIX-derived RCU technology it has improperly made available to the open source community. The following copyright attribution is found in Linux kernel 2.4.x:

Copyright (c) International Business Machines Corp., 2001 This program is free software; you can redistribute it and/or modify it under the terms of the GNU General Public License as published by the Free Software Foundation; either version 2 of the License, or (at your option) any later version. This program is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY; without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the GNU General Public License for more details. You should have received a copy of the GNU General Public License along with this program; if not, write to the Free Software Foundation, Inc., 59 Temple Place - Suite 330, Boston, MA 02111-1307, USA. Author: Dipankar Sarma (Based on a Dynix/ptx implementation by Paul Mckenney.

151. This publication of the RCU copyright is an example of IBM’s blatant disregard of SCO’s rights to control the use of the Software Product, including derivative works and modifications thereof, pursuant to §2.05 of the Sequent Software Agreement.

152. Sequent agreed in §7.10 of the Sequent Software Agreement to the following restrictions on transfer of the Software Product, including DYNIX/ptx as a derivative work of UNIX System V:

[N]othing in this Agreement grants to Licensee the right to sell, lease or otherwise transfer or dispose of a Software Product in whole or in part.

153. IBM has breached Sequent’s obligations under §7.10 of the Sequent Software Agreement by, inter alia, transferring portions of the Software Product (including System V source code, modifications, derivative works and methods based thereon), including DYNIX/ptx source code, documentation and methods for NUMA, RCU and SMP technologies, to the OSDL and/or Linus Torvalds for open distribution to the general public under a software license that destroys the proprietary and confidential nature of the Software Products.

154. Sequent agreed under §7.06(a) of the Sequent Software Agreement, to the following restrictions on confidentiality of the Software Product, including DYNIX/ptx as a derivative work of UNIX System V:

Licensee agrees that it shall hold all parts of the Software Products subject to this Agreement in confidence for AT&T. Licensee further agrees that it shall not make any disclosure of any or all of such Software Products (including methods or concepts utilized therein) to anyone, except to employees of Licensee to whom such disclosure is necessary to the use for which rights are granted hereunder. Licensee shall appropriately notify each employee to whom any such disclosure is made that such disclosure is made in confidence and shall be kept in confidence by such employee.

155. IBM has breached Sequent’s obligation of confidentiality by contributing portions of the Software Product (including System V source code, derivative works, modifications, and methods based thereon) to open source development of Linux and by using UNIX development methods in making modifications to Linux 2.4.x kernel and above, which are in material part, unauthorized derivative works of the Software Product, including but not limited to DYNIX/ptx-based NUMA technology, source code and methods, RCU source code and methods, and SMP source code and methods.

156. Export of UNIX technology is controlled by the United States government. Thus, SCO, Sequent, IBM and all other UNIX vendors are subject to strict export control regulations with respect to any UNIX-based customer distribution. To this end, Sequent agreed in §4.01 of the Software Agreement to restrictions on export of the Software Product (including System V source code, derivative works, documentation related thereto and methods based thereon), as follows:

Licensee agrees that it will not, without the prior written consent of AT&T, export, directly or indirectly, Software Products covered by this Agreement to any country outside of the United States.

No permission has ever been granted by SCO or its predecessors to Sequent to allow it to directly or indirectly make available all or portions of the Software Product to countries outside the United States that are subject to strict technology export control by the United States government: viz, Cuba, Iran, Syria, North Korea and Libya. IBM is ignoring and attempting to circumvent the export control restrictions that apply to UNIX as it accelerates development of Linux for enterprise use.

157. Thus, IBM has breached §4.01 of the Sequent Software Agreement by, inter alia, making extensive, advanced multiprocessor scaling functions of the Software Product, including NUMA technology, RCU technology, SMP technology and other derivative works and methods based thereon, available for free distribution to anyone in the world with a computer. As it relates to Linux 2.4.x and above releases, IBM is indirectly making the Software Product and operating system modifications, particularly NUMA technology, RCU technology and SMP technology, available to countries and organizations in those countries for scaling single processor computers into multi-processor supercomputers that can be used for encryption, scientific research and weapons research.

158. SCO has the self-executing, contractual right to terminate IBM's right to use and distribute the Software Product, including modifications, derivative works and methods based thereon, if IBM fails to fultill one or more of its obligations under the Software Agreement. This authority is contractually granted under the following provisions of the Sequent Agreements:

If Licensee fails to fulfill one or more of its obligations under this Agreement, AT&T may, upon its election and in addition to any other remedies that it may have, at any time terminate all the rights granted by it hereunder by not less than two (2) months' written notice to Licensee specifying any such breach, unless within the period of such notice all breaches specified therein shall have been remedied; upon such termination Licensee shall immediately discontinue use of and return or destroy all copies of Software Products subject to this Agreement. [Software Agreement, Section 6.03]

159. Consistent with these rights, plaintiff delivered a notice of termination to Sequent (the "Dynix/ptx Termination Notice") for IBM's breaches of the Software (and Sublicensing) Agreement.

160. Following delivery of the Dynix Termination Notice, IBM did not respond during the two months provided to cure.

161. IBM has disregarded SCO's rights under the Sequent Agreements by failing to undertake any efforts to cure its numerous and flagrant violations thereunder. As a result, effective July 30, 2003, the Sequent Agreements were terminated and IBM has no further rights thereunder.

162. IBM nonetheless continues to operate under the Sequent Agreements, and use the Software Products and Source Code thereunder as though its rights under the Agreements have not been terminated.

163. IBM no longer has any right to use the UNIX Software Code or make modifications or derivative works thereunder. In fact, IBM is contractually obligated to "immediately discontinue use of and return or destroy all copies of Software Products subject to this Agreement."

164. As a result of IBM's breaches before termination, SCO has been damaaged in the marketplace for violations by IBM in an amount to be proven at trial, but not less than $1 billion.

165. In addition, and to the extent that IBM continues to completely repudiate its obligations under the Sequent Agreements regarding the Software Product, plaintiff will sustain substantial continuing and ongoing damages. These damages include the full amount IBM receives as a result of its ongoing sales of Dynix/ptx, including software, services and hardware.

166. Moreover, if IBM does not return or destroy all source and binary copies of the Software Products received pursuant to the Sequent Agreements and/or continues to contribute some or all of these Protected Materials to open source, SCO will be irreparably harmed. As a result, SCO is entitled to a permanent injunction requiring IBM to return or destroy all source code and binary copies of the Software Products and/or prohibiting IBM from further contribution of the protected Software Products into open source.

FOURTH CAUSE OF ACTION

(Breach of Sequent Sublicensing Agreement)

167. Plaintiff incorporates and re-alleges paragraphs No. 1-166, above.

168. As set forth above, SCO is the successor to AT&T under that certain Sequent Sublicensing Agreement originally executed by and between AT&T and Sequent designated as SUB-000321A. The Sequent Sublicensing Agreement grants the right to distribute object-based code of UNIX System V and modifications thereto and derivative works based thereon.

169. SCO has terminated IBM's right to use and distribute under the Sequent Agreements the Software Product, including derivative works and methods based thereon as of the Dynix/ptx Termination Date.

170. From and after the Dynix/ptx Termination Date, any and all distributions of Dynix/ptx by IBM, or any part or sub-program or sub-routine thereof, is in violation of the Sequent Sublicensing Agreement.

171. IBM has disregarded and continues to completely disregard and repudiate Sequent's obligations under the Sequent Sublicensing Agreement, to plaintiff's substantial, continuing and ongoing damage. these damages include the full amount IBM receives as a result of its ongoing sales of Dynix/ptx, including software, services and hardware.

172. Moreover, if IBM does not return or destroy all source and binary copies of the Software Products and/or continues to contribute some or all of these protected materials to open source, SCO will be irreparabaly harmed. As a result, SCO is entitled to a permanent injunction requiring IBM to return or destroy all source code and binary copies of the Software Products and/or prohibiting IBM from further contributions of the protected Software Products into open source.

FIFTH CAUSE OF ACTION

(Copyright Infringement)

173. Plaintiff incorporates and re-alleges paragraphs No. 1-172, above.

174. As set forth above, SCO is the successor in interest to the IBM Related Agreements and the Sequent Agreements.

175. Despite termination of such Agreements, IBM has continued to reproduce, prepare derivative works of, and distribute UNIX software, source code, object code, programming tools, and documentation related to UNIX operating system technology, and has induced others to do the same.

176. SCO is the owner of copyright rights to UNIX software, source code, object code, programming tools, documentation related to UNIX operating system technology, and derivative works thereof. These materials are covered by numerous copyright registrations issued by the United States Copyright Office (the "Copyrighted Programs"). These registrations have been obtained by SCO and its predecessors in interest and are owned by SCO. For example, included among such registrations (attached as Exhibits H to U) are the following:

Table E
TitleRegistration NumberRegistration Date
HUNIX Operating System Edition 5 and Instruction ManualTXU-510-028March 25, 1992
IUNIX Operating System Edition 6 and Instruction ManualTXu-511-236April 7, 1992
JUNIX Operating System Edition 32V and Instruction ManualTXu-516-704May 15, 1992
KUNIX Operating System Edition 7 and Instruction ManualTXU-516-705May 15, 1992
LOperating System Utility ProgramsTXu-301-868November 25, 1987
MUNIXWARE 7.1.3TX 5-787-679June 11, 2003
NUNIX SYSTEM V RELEASE 3.0TX 5-750-270July 7, 2003
OUNIX SYSTEM V RELEASE 3.1TX 5-750-269July 7, 2003
PUNIX SYSTEM V RELEASE 3.2TX 5-750-271July 7, 2003
QUNIX SYSTEM V RELEASE 4.0TX 5-776-217July 16, 2003
RUNIX SYSTEM V RELEASE 4.1ESTX 5-705-356July 30, 2003
SUNIX SYSTEM V RELEASE 4.2TX 5-762-235July 3, 2003
TUNIX SYSTEM V RELEASE 4.1TX 5-762-234July 3, 2003
UUNIX SYSTEM V RELEASE 3.2TX 5-750-268July 9, 2003

177. SCO and its predecessors in interest created the Copyrighted Programs as original works of authorship, and, as such, the Copyrighted Programs constitute copyrightable subject matter under the copyright laws of the United States. The Copyrighted Programs were automatically subject to copyright protection under 17 U.S.C. Section 102(a) when such programs were fixed in a tangible medium of expression. Copyright protection under 17 U.S.C. Section 106 extends to derivative works which are defined in 17 U.S.C. Section 101 to include works based on the original work or any other form in which the original work may be recast, transformed, modified or adapted.

178. Pursuant to U.S.C. Section 410(c), the certificates of copyright registrations for each Copyrighted Program constitute prima facie evidence of the validity of the copyrights and of the facts stated in the certificates. SCO and its predecessors' registered copyrights in the Copyrighted Programs are entitled to such statutory presumptions.

179. IBM's breaches of the IBM Related Agreements and the Sequent Agreements and its post-termination actions have infringed, have induced infringement of, and have contributed to the infringement of, copyright registrations of SCO and its predecessors. Such actions have been willful and have been done with knowledge of the copyright rights of SCO.

180. SCO has been damaged by IBM's conduct and has no adequate remedy at law. IBM's conduct has caused, and, if not enjoined, will continue to cause, irreparable harm to SCO. As a result of IBM's wrongful conduct, SCO is entitled to injunctive relief pursuant to 17 U.S.C. Section 502 and SCO's actual damages and IBM's profits as a result of the infringing acts pursuant to 17 U.S.C. Section 504(a), statutory damages to the extent applicable pursuant to 17 U.S.C. Section 504(b) and enhanced damages, together with attorneys' fees and costs pursuant to 17 U.S.C. Section 505.

SIXTH CAUSE OF ACTION

(Unfair Competition)

181. Plaintiff incorporates and re-alleges paragraphs No. 1-180, above.

182. Plaintiff and its predecessors have built the UNIX System V Technology, the Unix Software Code, SCO OpenServer, UnixWare and their derivatives through very substantial efforts over a time span in excess of 20 years and expenditure of money in excess of $1 billion.

183. IBM has engaged in a course of conduct that is intentionally and foreseeably calculated to undermine and/or destroy the economic value of UNIX anywhere and everywhere in the world, and to undermine and/or destroy plaintiff’s rights to fully exploit and benefit from its ownership rights in and to UNIX System V Technology, the Unix Software Code, SCO OpenServer, UnixWare and their derivatives, and thereby seize the value of UNIX System V Technology, the Unix Software Code, SCO OpenServer, UnixWare and their derivatives directly for its own benefit and indirectly for the benefit of its Linux distribution partners.

184. In furtherance of its scheme of unfair competition, IBM has engaged in the following conduct:

a) Misappropriation of source code, methods, trade secrets and confidential information of plaintiff;

b) Breach of contract;

c)Violation of confidentiality provisions running to the benefit of plaintiff;

d) Inducing and encouraging others to violate confidentiality provisions;

e)Contribution of protected source code and methods for incorporation into one or more Linux software releases, intended for transfer of ownership to the general public;

f) Use of deceptive means and practices in dealing with plaintiff with respect to its software development efforts; and

g) Other methods of unlawful and/or unfair competition.

185. IBM’s unfair competition has directly and/or proximately caused significant foreseeable and consequential harm to plaintiff in the following particulars:

a)Plaintiff’s revenue stream from UNIX licenses for Intel-based processing platforms has decreased substantially;

b) As Intel-based processors have now become the processing platform of choice for a rapidly-increasing customer base of enterprise software users, plaintiff has been deprived of the opportunity to fairly exploit its market-leading position for UNIX on Intel-based processors, which revenue opportunity would have been very substantial on a recurring, annual basis but for IBM’s unfairly competitive practices;

c)Plaintiff stands at imminent risk of being deprived of its entire stream of all UNIX licensing revenue in the foreseeably near future;

d) Plaintiff has been deprived of the effective ability to market and sell its new UNIX-related improvements, including a 32-bit version of UNIX for Intel processors developed prior to Project Monterey, and its new web-based UNIX-related products, including UNIX System V Release 6;

e)Plaintiff has been deprived of the effective revenue licensing opportunity to transfer its existing UNIX System V Release 4 and Release 5 customer base to UNIX System V Release 6; and

f) Plaintiff has been deprived of the effective ability to otherwise fully and fairly exploit UNIX’s market-leading position in enterprise software market, which deprivation is highly significant given the inability of Microsoft Windows to properly support large-scale enterprise applications.

186. As a result of IBM’s unfair competition and the marketplace injury sustained by plaintiff as set forth above, plaintiff has suffered damages in an amount to be proven at trial, but no less than $1 billion, together with additional damages through and after the time of trial foreseeably and consequentially resulting from IBM’s unfair competition in an amount to be proven at the time of trial.

188.[sic] IBM’s unfairly competitive conduct was also intentionally and maliciously designed to destroy plaintiff’s business livelihood and all opportunities of plaintiff to derive value from its UNIX-based assets in the marketplace. As such, IBM’s wrongful acts and course of conduct has created a profoundly adverse effect on UNIX business worldwide. As such, this Court should impose an award of punitive damages against IBM in an amount to be proven and supported at trial.

SEVENTH CAUSE OF ACTION

(Interference with Contract)

187 [sic]. Plaintiff incorporates and re-alleges by reference paragraphs 1-186, [sic]above.

188.[sic] SCO has contracts with customers around the world for licensing of SCO OpenServer and UnixWare.

189.[sic] IBM knew and should have known of these corporate software licensing agreements between SCO and its customers, including the fact that such agreements contain confidentiality provisions and provisions limiting use of the licensed object-based code.

190.[sic] IBM, directly and through its Linux distribution partners, has intentionally and without justification induced SCO’s customers and licensees to breach their corporate licensing agreements, including but not limited to, inducing the customers to reverse engineer, decompile, translate, create derivative works, modify or otherwise use the UNIX software in ways in violation of the license agreements. These customers include Sherwin Williams, Auto Zone, among others.

191.[sic] IBM’s tortious interference has directly and/or proximately caused significant foreseeable damages to SCO, including a substantial loss of revenues.

192[sic]. IBM’s tortious conduct was also intentionally and maliciously designed to destroy plaintiff’s business livelihood and all opportunities of plaintiff to derive value from its UNIX-based assets in the marketplace. As such, this Court should impose an award of punitive damages against IBM in an amount to be proven and supported at trial.

EIGHTH CAUSE OF ACTION

(Interference with Contract)

193.[sic] Plaintiff incorporates and re-alleges paragraphs No. 1-192,[sic] above.

194.[sic] Through an Asset Purchase Agreement dated September 19, 1995, as amended ("Asset Purchase Agreement," attached hereto with amendments as Exhibit "V") wherein Novell received 6.1 million shares of SCO common stock, valued at the time at over $100 million in consideration, SCO, through its predecessor in interest, acquired from Novell all right, title and interest in and to the UNIX and UnixWare business, operating system, source code, and all copyrights related thereto, as well as all claims arising after the closing date against any parties relating to any right, property, or asset included in the business.

195.[sic] Schedule 1.1(a) to the Asset Purchase Agreement provides that SCO, through its predecessor in interest, acquired from Novell:

I. All rights and ownership of UNIX and UnixWare, including but not limited to all versions of UNIX and UnixWare and copies of UNIX and UnixWare (including revisions and updates in process), and all technical, design, development, installation, operation and maintenance information concerning UNIX and UnixWare, including source code, source documentation, source listings and annotations, appropriate engineering notebooks, test data and results, as well as all reference manuals and support materials normally distributed by [Novell] to end-users and potential end-users in connection with the distribution of UNIX and UnixWare . . .

II. All of [Novell's] claims arising after the Closing Date against any parties relating to any right, property or asset included in the Business.

196. In Amendment No. 2 to the Asset Purchase Agreement, Novell and SCO made clear that SCO owned all "copyrights and trademarks owned by Novell as of the date of the [Asset Purchase Agreement] required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies," and that Novell would not longer be liable should any third party bring a claim against SCO "pertaining to said copyrights and trademarks." (Exh. V, Amendment No. 2 to the Asset Purchase Agreement dated October 16, 1996 at I).

197. IBM is well aware of the terms of the Asset Purchase Agreement and the obligations Novell owes to SCO pursuant to the Asset Purchase Agreement. Indeed, IBM expressly acknowledged the existence of the Asset Purchase Agreement when it executed Amendment X, attached hereto as Exhibit E.

198.[sic] After suit against IBM was filed, and more than seven years after the Asset Purchase Agreement was executed by Novell, IBM intentionally and improperly interfered with the Asset Purchase Agreement.

199.[sic] Specifically, commencing on or about May 2003, Novell began falsely claiming that Novell, not SCO, owned the copyrights relating to UNIX System V. On information and belief, IBM had induced or otherwise caused Novell to take the position that Novell owned the copyrights -- a position that is flatly contradicted by the Asset Purchase Agreement. Since that time, Novell has improperly registered the same copyrights that it sold to SCO and that SCO had previously registered.

200.[sic] In addition, IBM intentionally and improperly interfered with the Asset Purchase Agreement by inducing or otherwise causing Novell to violate the Asset Purchase Agreement by claiming Novell could waive and was waiving breaches of license agreements by various licensees, including IBM. Specifically, with the IBM Termination Date looming only days away, Novell wrote to SCO claiming that either SCO must waive its right to terminate IBM's license based upon IBM's numerous breaches thereof or else Novell would purportedly waive SCO's right to terminate the license and otherwise excuse IBM's numerous breaches of the license agreements.

201.[sic] Again, Novell's position, improperly encouraged and induced by IBM, is flatly contrary to the terms of the Asset Purchase Agreement.

202.[sic] Under the Asset Purchase Agreement, Novell merely retained an interest in receiving future royalties from System V licensees. SCO, conversely, obtained "all of Sellers' right, title and interest in and to the assets and properties of the seller relating to the Business (collectively the "Assets") identified on Schedule 1.1(a) hereto." The Assets identified on Schedule 1.1(a) include "all rights and ownership of Unix and UnixWare," including source code, software and sublicensing agreements and "all claims against any parties relating to any right or asset included in the business."

203.[sic] Thus, SCO acquired all of Novell's right, title and interest: (a) to the AT&T software and sublicensing agreements, including the IBM Related Agreements and Sequent Agreements, and (b) to all claims against any parties.

204.[sic] As a beneficiary of the royalties, Novell can modify or waive the royalty amounts due under a license agreement. However, at IBM's improper urging and inducement, Novell now claims that it can amend, modify or waive any and all terms of the software and sublicensing agreements. Thus, according to Novell's position prompted by IBM, if a licensing such as IBM is egregiously breaching its agreement and thereby destroying the value of System V, Novell claims that it can waive any such breach of the agreement. Such position, of course, is unfounded and preposterous; otherwise, the over $100 million dollars paid for the software and sublicensing agreements was for naught if Novell retained all rights to waive any breach by a licensee. Of course, Novell could not sell all right, title and interest to the AT&T software and sublicensing agreements and the rights to all claims against third parties, only to have Novell also claim it can wiave those rights. While Novell may be able to modify or waive the royalties to which Novell was entitled, Novell cannot waive rights it clearly unequivocally sold to SCO (i.e. the software and sublicensing agreements, including all the restrictive covenants, and all claims against any parties relating to those agreements.) Novell nonetheless has attempted to do so at IBM's improper direction.

205. Since improperly inducing Novell to breach the Asset Purchase Agreement by falsely claiming copyright ownership of System V (and subsequently registering those copyrights after SCO had registered them) and since improperly inducing Novell to attempt to breach the Asset Purchase Agreement by purporting to waive SCO's rights under the Asset Purchase Agreement, IBM has contributed $50 million dollars to Novell so that Novell can complete the purchase of SuSE, the largest Linux distributor in Europe.

206. IBM's tortious interference has directly and/or proximately caused significant forseeable damages to SCO.

207. IBM's tortious conduct was also intentionally and maliciously designed to destroy plaintiff's business livelihood and all opportunities of plaintiff to derive value from its Unix based assets in the marketplace. As such, this Court should impose and award punitive damages against IBM in an amount to be proved and supported at trial.

NINTH CAUSE OF ACTION

(Interference with Business Relationships)

208. Plaintiff incorporates and re-alleges by reference paragraphs 1-207, above.

209. SCO had existing or potential economic relationships with a variety of companies in the computer industry, including but not limited to Hewlett Packard.

210. IBM has intentionally interfered with plaintiff's existing or potential economic relations. For example, at Linux World in January, 2003 IBM representatives contacted various companies with whom SCO had existing or potential economic relations. These IBM representatives said that IBM was discontinuing doing business with SCO and that these other companies, some of whom are business partners with IBM, also should discontinue doing business with SCO.

211. IBM, as the world's largest information technology company, as well as the world's largest business and technology services provider ($36 billion), and the world's largest IT financier ($35 billion in assets), has considerable clout with these companies that it told to stop doing business with SCO.

212. IBM's intentional interference was for an improper purpose and/or by improper means.

213. IBM's intentional interference has directly and/or proximately caused significant forseeable damages to SCO.

214. IBM's tortious conduct was also intentionally and maliciously designed to destroy plaintiff's business livelihood. As such, this Court should impose an award of punitive damages against IBM in an amount to be proved and supported at trial.

WHEREFORE, having fully set forth its complaint, plaintiff prays for relief from this Court as follows:

1. Under the First Cause of Action, damages for breach of the IBM Softare Agreement in an amount not less than $1 billion, together with additional damages through and after the time of trial forseeably and consequently resulting from IBM's breach, in an amount to be proven at the time of trial; and together with a permanent injunction requiring IBM to return or destroy all source code and binary copies of the Software Products and/or prohibiting IBM from further contributions of the protected Software Products into open source; and for restitution in an amount measured by the benefits conferred upon IBM by its ongoing improper use of the Software Products, including the full amount IBM receives as a result of its ongoing sales of AIX, including software, services and hardware; and for attorneys fees and costs;

2. Under the Second Cause of Action, damages for breach of the IBM Sublicensing Agreement in an amount not less than $1 billion, together with additional damages through and after the time of trial forseeably and consequently resulting from IBM's breach, in an amount to be proven at the time of trial; and together with a permanent injunction requiring IBM to return or destroy all source code and binary copies of the Software Products and/or prohibiting IBM from further contributions of the protected Software Products into open source; and for restitution in an amount measured by the benefits conferred upon IBM by its ongoing improper use of the Software Products, including the full amount IBM receives as a result of its ongoing sales of AIX, including software, services and hardware, and for attorneys fees and costs;

3. Under the Third Cause of Action, damages for breach of the Sequent Software Agreement in an amount not less than $1 billion, together with additional damages through and after the time of trial forseeably and consequentially resulting from IBM's breach, in an amount to be proven at the time of trial; and together with a permanent injunction requiring IBM to return or destroy all source code and binary copies of the Software Products and/or prohibiting IBM from further contributions of the protected Software Products into open source; and for restitution in an amount measured by the benefits conferred upon IBM by its ongoing improper use of the Software Products, including the full amount IBM receives as a result of its ongoing sales of Dynix/ptx, including software, services and hardware; and for attorneys fees and costs;

4. Under the Fourth Cause of Action, damages for breach of the Sequent Sublicensing Agreement in an amount not less than $1 billion, together with additional damages through and after the time of trial forseeably and consequentially resulting from IBM's breach, in an amount to be proven at the time of trial; and together with a permanent injunction requiring IBM to return or destroy all source code and binary copies of the Software Products and/or prohibiting IBM from further contributions of the protected Software Products into open source; and for restitution in an amount measured by the benefits conferred upon IBM by its ongoing, improper use of the Software Products, including the full amount IBM receives as a result of its ongoing sales of Dynix/ptx, including software, services and hardware; and for attorneys fees and costs;

5. Under the Fifth Cause of Action, injunctive relief pursuant to 17 U.S.C. § 502 and SCO's actual damages and IBM's profits as a result of the infringing acts pursuant to 17 U.S.C. § 504 (a), statutory damages to the extent applicable pursuant to 17 U.S.C. § 504 (b) and enhanced damages, together with attorneys' fees and costs pursuant to 17 U.S.C. § 505

6. Under Sixth Cause of Action, for damages in an amount not less than $1 billion, for unfair competition arising from common law, and damages for violations thereof, together with additional damages through and after the time of trial;

7. Under the Seventh through Ninth Causes of Action, for damages in an amount to be proven at trial for tortious interference, together with additional damages through and after the time of trial;

8. For a permanent injunction to prohibit IBM from further contributions of the protected Software Products into open source;

9. For punitive damages under the Sixth through Ninth Causes of Action for IBM's malicious and willful conduct, in an amount to be proven at trial;

10. For attorneys' fees and costs as provided by statute and/or by contract in an amount to be proven at trial; together with pre- and post-judgment interest and;

11. For all other legal and equitable relief deemed just and proper by this Court.

DATED this ___ day of June, 2003.

By: ________________________________________

HATCH, JAMES & DODGE

Brent O. Hatch

Mark F. James

BOIES, SCHILLER & FLEXNER

David Boies

Stephen N. Zack

Mark J. Heise

Attorneys for The SCO Group, Inc.

Plaintiff’s address:

[address]


  


SCO's Second Amended Complaint, If the Judge Says Yes | 515 comments | Create New Account
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SCO are learning a little
Authored by: maroberts on Saturday, February 07 2004 @ 11:39 AM EST
At least the amended complaint has some specific files and line numbers in!

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Nick_UK on Saturday, February 07 2004 @ 11:39 AM EST
I find...

"Linux is, in material part, based upon UNIX source code and methods"

...a bit thin. They really mean it is based on "standards" (or to all
concerned, that is what Linux is - a UNIX clone following the standards in place
- source code has nothing to do with it).

As to stopping IBM using/selling AIX... whoa..

Nick

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: peragrin on Saturday, February 07 2004 @ 11:46 AM EST
Sorry i couldn't finish it, my eyes glazed over it with all the flat out lies. At least it does actually use specified details. The only problem than is that half of them are lies.

Linus comment that killing off microsoft is an unitentional side affect of a hobby just became valuable. The same can be said about Unix. Also acording to TSCOG definition of derviative works, Adobe is now owned by apple because photoshop, and illsatrator(spelling??) were first made for the Mac and all subseqeunt versions, for any platform must also belong to Apple.

---
I thought once I was found but it was only a dream.

[ Reply to This | # ]

  • Derviative Works - Authored by: Anonymous on Saturday, February 07 2004 @ 11:46 PM EST
SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Anonymous on Saturday, February 07 2004 @ 11:46 AM EST
Take note here, people: There are no longer any trade secret claims. SCO has completely eliminated them. Really, all we're left with is their breach of contract claims and the new copyright infringement claim (I wouldn't worry about the unfair competition et. al claims, as they really flow mainly from the original "breach" of the contract). The copyright infringement claim, as anyone can see, has nothing at all to do with what they've been claiming publicly. It has nothing to do with people "stealing" their code and putting it in Linux. In fact, it has nothing to do with Linux AT ALL. It's only about IBM continuing to distribute AIX after SCO "terminated" their licence.

If there's actually anyone left that believes SCO has a hope in hell of winning this case, I'd be shocked. If nothing else, the fact that their precious copyright infringement claim that they've swore up and down would be filed "soon" for nearly a year now has zero to do with Linux should easily demonstrate that SCO has no case and never did. I have a feeling their case will be dismissed soon.

Of course, then they'll still have to fend of IBM's counter-claims. I don't think IBM has any interest whatsoever in backing off of them at this point. Perhaps, instead of litigators, SCO should invest in a good bankruptcy attorney at this point?

[ Reply to This | # ]

arch/i386/kernel/apic.c, 25-28
Authored by: Anonymous on Saturday, February 07 2004 @ 12:01 PM EST
Hmm. In kernel 2.4.20 (the only one I have online right now, the first 35 or so lines are nothing but comments and #include directives.

The next 8 or so lines are global declarations/initializations.

What are the odds of 20+ lines being added to this file so that SCO's claim of lines 25-28 in version 2.4.1 aren't laughable?

Anyone else care to look at this file?

[ Reply to This | # ]

Explain how this is wrong, SCO's OT again.
Authored by: Anonymous on Saturday, February 07 2004 @ 12:03 PM EST
"However, IBM may not distribute Source Copies to Company A for purposes of making modifications to adapt the Sublicensed Products [AIX] as a general operating systtem for Company A's general computer hardware system. (Emphasis added)."

This sentence (besides the spelling mistakes) doesn't make sense to me, and seems to be at the heart of SCO's case. In other words, if they take printer drivers from AIX to Linux that's a violation??

The other thing that blew me away was that most of the files were header files, something that is *very* difficult to prove.

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Nick_UK on Saturday, February 07 2004 @ 12:04 PM EST
Just selecting one of those files mentioned:

/arch/i386/kernel/traps.c

The coding guys are _pretty_ well on the ball when updating/adding to this
stuff.

This is from the latest 2.6.2 code, (but supposedly inherited through the krenel
train of progress).

Here is the header to 'traps.c'

/*
* linux/arch/i386/traps.c
*
* Copyright (C) 1991, 1992 Linus Torvalds
*
* Pentium III FXSR, SSE support
* Gareth Hughes <gareth@valinux.com>, May 2000
*/

/*
* 'Traps.c' handles hardware traps and faults after we have saved some
* state in 'asm.s'.
*/

Now, I am not, and will be not, going through all this code (I am not qualified
to), but I bet the kernel crew _will_ dissect and prove that _ALL_ the code in
question was authored as 'original' (with proof).

The people that actually coded it must be seeing red and be very, very angry.

Grrrrr.

Nick

[ Reply to This | # ]

PJ: Automatisation of text ripping
Authored by: zapyon on Saturday, February 07 2004 @ 12:06 PM EST
Hi PJ,

I just checked the possibility of automatically converting the image PDFs to
text:

1st: pdfimage input.pdf outputprefix
2nd: convert outputprefix-###.pbm (if necessary)
3rd: gocr outputprefix-###.pbm (or whatever)
4th: correct typos in the OCR generated text.

I just had 10 minutes to try and I am not so good at scripting shell script that
fast. I may look into this deeper tomorrow.

Anyone else can give any info on that? Should save a lot of time as compared to
typing from the PDFs ...

Kind regards


zapyon


[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Waterman on Saturday, February 07 2004 @ 12:08 PM EST
Looks like SCOG thinks that IBM only had the right to use AIX internally. I bet
IBM has a different idea. (and proof. :-) )

Lot of reading there. Keep up the good work!

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Anonymous on Saturday, February 07 2004 @ 12:09 PM EST
Can somone post those lines of code because 90% of those files I don't even have
on my system. Something tells me any of the code listed can be taken out easily
and that they amount to

printf ("This warning is similar to the warning you get with other OS's
because it is common sence to word it this way");

[ Reply to This | # ]

Amazing. Simply amazing.
Authored by: Scriptwriter on Saturday, February 07 2004 @ 12:09 PM EST
Amazing that they got a paragraph right, that is. Paragraph 1 appears to be more
or less factually correct.

OK, I'll admit it. I didn't read through the whole thing. I'll do that later
when I have more time. I did, however, notice that the tables of what was copied
are based on the "All Your Code Are Belong To Us" theory.

The first one is particularly interesting, since it says the AIX code was copied
into Linux 2.2.12, not 2.4 as the others are. At one point The Darl said that
Linux 2.2 was free of their IP. So does that follow that at least that portion
of AIX is not their IP? And if this portion is, why not more of AIX? Or is this
just an example of The Darl once again not knowing what he's talking about?

---
They can have my copy of Linux when they pry it out of my cold, dead flippers.

irc.fdfnet.net #groklaw

[ Reply to This | # ]

Clock.c
Authored by: _Arthur on Saturday, February 07 2004 @ 12:13 PM EST
How many hours will it take to debunk their Clock.c claims?

2 hours ?
9 minutes ?


[ Reply to This | # ]

  • Clock.c - Authored by: Anonymous on Saturday, February 07 2004 @ 12:16 PM EST
  • Clock.c - Authored by: Nick_UK on Saturday, February 07 2004 @ 12:24 PM EST
    • Clock.c - Authored by: Maserati on Saturday, February 07 2004 @ 02:54 PM EST
      • Clock.c - Authored by: Anonymous on Saturday, February 07 2004 @ 10:13 PM EST
  • Clock.c - Authored by: Weeble on Saturday, February 07 2004 @ 03:49 PM EST
  • Clock.c - Authored by: Anonymous on Saturday, February 07 2004 @ 09:29 PM EST
SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: tredman on Saturday, February 07 2004 @ 12:17 PM EST
#ifndef _IANAL_
#include <IANAL.h>
#endif

Okay, now I'm confused again, and have been for the last day or two. Not being
a lawyer, maybe I'm not seeing the intricacies of what's going on here.

From what I understand, trade secret claims have been eliminated from SCOX's
list of allegations. Now it has become just a contract dispute, and a copyright
case based on the fact that IBM has been distributing AIX on a terminated
license.

Here's where things get a little murky for me. If the trade secret claims are
gone, isn't that the whole basis for the revocation of the license? If they're
no longer saying that IBM incorporated SCOX trade secrets into outside projects
(namely Linux), doesn't that nullify the whole license termination thing,
putting IBM in the clear on that count? And if so, doesn't that allow for IBM
to add another item to their countersuit, namely the unlawful termination of
their UNIX license?

Or are we just talking about SCOX's twisted definition of derivative works?

Also, since the addition of the copyright claims, doesn't that immediately slam
on the brakes with the current trial and defer it until an outcome presents
itself with their litigation against Novell?

I was actually quite impressed with their filing this time around. SCOX
actually produced content with detail. Too bad it's mostly smokescreen. The
thing I find most interesting with this is, with the source files that they're
presenting as infringing, the whole subject of mitigation of damages comes up.
From my limited knowledge of the kernel (maybe a kernel hacker can help me
here), there is absolutely, positively NO reason that those files can't be
pulled out, with some minor patching to fill in the holes. At least half of
those features are modular and can be disabled from make config anyway. Most
people use EXT2/3 instead of JFS, EVMS is still pretty new to be in widespread
use, and the RCS files can be rewritten to include another method. All of this
would take, in my estimation, less than a week to fix and thoroughly test. Now
you're talking about more than a year's worth of "damages" that SCOX
is trying to fraudulently claim.

Tim

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SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Electric Dragon on Saturday, February 07 2004 @ 12:17 PM EST
I've done a rough spreadsheet of the lines SCO allege, and it comes to the grand total of 2133 lines.

This is assuming the entirety of include/linux/rclock.h,kernel/rclock.c,include/linux/kmemdef.h and kernel/kmemdef.c: which of course is not strictly correct because each of the 4 complete files contains the IBM copyright and the GPL notice - about 30 lines per file. Lengths of those files obtained here .

Other counts based on SCO's line number attributions.

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Anonymous on Saturday, February 07 2004 @ 12:19 PM EST
They are still flogging JFS, in spite of the widely known reports that both the
current AIX and Linux versions were developed from the IBM OS/2 version of JFS.

Any code in common is probably easily found in the OS/2 sources.

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: choco on Saturday, February 07 2004 @ 12:23 PM EST
So have I got this right ?

SCO has been promising for most of last year that they were going to expand the
case against IBM to include copyrights.

Then SCO (perhaps rashly) promised to do this in front of a judge.

And then, at the last possible moment, they finally file something - and this
"copyright" stuff ENTIRELY relates to AIX and what IBM did after SCO
had "terminated" IBM's licence. Is that really it ?

People should be shouting this from the rooftops. Because It is NOT what I
understood Darl et al were promising they were going to deliver. We must not let
SCO get away with using half-truths to portray this as anything more than the
squalid little cop-out that it is.

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: belzecue on Saturday, February 07 2004 @ 12:25 PM EST
a) Sun and Microsoft's market share in the enterprise market continued to grow...

And yet further in they say:

f) Plaintiff has been deprived of the effective ability to otherwise fully and fairly exploit UNIX’s market-leading position in enterprise software market, which deprivation is highly significant given the inability of Microsoft Windows to properly support large-scale enterprise applications.

So SCO says Microsoft is stealing their turf even though MS Windows cannot support large-scale enterprises?? Darl, I don't think Bill Gates will appreciate you calling his baby a Mickey Mouse OS. Pooof!There goes your next 8 million-dollar fiscal infusion from MS.

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: blacklight on Saturday, February 07 2004 @ 12:25 PM EST
Too bad the SCO Group withdrew the trade secret violations in the middle of the night: I was looking forward to their deconstruction and dismemberment. So now we are down to contract term violations which can be easily disposed of once all contract terms are read, not just the ones that the SCO Group quoted. The support for the copyrights violations allegations is laughable: copyrights on manuals for 1992, disputed copyrights foe 2003 and nothing in between. The good thing is that the SCO Group wrote its tearjerker in distinct paragraphs, each of which can be refuted in turn. I like the way the SCO Group claims that it had a virtual monopoly of UNIX on Intel, and was thoroughly screwed when IBM walked off Monterey. If the SCO Group's technology was as good as they say, the SCO Group should have had no trouble putting into the marketplace successful, first-rate UNIX on Intel products - Monterey or no Monterey. However, the only way to read a SCO Group pleading and enjoy the experience is to suspend all disbelief while reading it and treat the pleading as if it were a fairy tale. Delusions and dreams of (somebody else's) wealth die hard, even in the face of reality.

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Anonymous on Saturday, February 07 2004 @ 12:26 PM EST
"IBM had little to no expertise on Intel processors" is a scream...
Maybe somebody should explain them the meaning of "IBM compatible
PC"... oh, and OS/2 while we're at it

[ Reply to This | # ]

TOTAL F***ING BUL****T ... /rage/
Authored by: Anonymous on Saturday, February 07 2004 @ 12:27 PM EST
PJ, pardon my ***'s, but I am starting to get just plain MAD that SCO is allowed
to continue to do this, and is not facing immediate and severe recriminations
for their outright lies, defamation, and slander.

I know you are reading this, you SCOfflaws, and I want you to pass this upstream
to that idiot figurehead of your company and his buddies. Oh, and BTW, you
suck.

These bits really popped my lid:

---------------------------
76. IBM’s entry into the open source community and its concerted efforts to
control the community for its own economic benefit have substantially altered
the use and impact of Linux.
---------------------------

IBM HAS NOT CONTROLLED THE COMMUNITY. IBM has *contributed*, greatly in some
ways, to the community, thus it is they who are having great success. Unlike
SCO, who is attempting to exert force and control, and who are getting their
asses creamed into the dirt every effing time they turn around.

---------------------------
78. However, as is widely reported and as IBM executives knew, or should have
known, a significant flaw of Linux is the inability and/or unwillingness of the
Linux process manager, Linus Torvalds, to identify the intellectual property
origins of contributed source code that comes in from those many different
software developers. If source code is code copied from protected UNIX code,
there is no way for Linus Torvalds to identify that fact.
---------------------------

WTF? "inability and/or unwillingness"??? Linus has more ability than
your entire staff apparently, seeing as how he has been able to guide the
assembly of the Linux kernel in such a way that in almost a year of this fiaSCO,
***YOU HAVE YET TO SUCCESSFULLY SHOW ONE REAL, SOLID, INDEPENDENTLY VERIFIABLE
PIECE OF EVIDENCE***. Put up, or shut the %#@^ up.

----------------------------
77. In furtherance of its plan to destroy its UNIX competitors, IBM has
announced its intention to make Linux, distributed to end users without a fee,
the successor to all existing UNIX operating systems used by Fortune 1000
companies and other large companies in the enterprise computing market.
----------------------------

Yay! Then scum-sucking, non-producing, litiiginous slimy little companies like
SCO won't have enough money to hire lawyers to make their bogus claims and run
their stock up in such a criminally evident manner.

FOAD, SCO.

[ Reply to This | # ]

  • Now now now - Authored by: Scriptwriter on Saturday, February 07 2004 @ 12:46 PM EST
    • Now now now - Authored by: Anonymous on Saturday, February 07 2004 @ 01:06 PM EST
      • Now now now - Authored by: guido on Saturday, February 07 2004 @ 01:24 PM EST
      • Now now now - Authored by: Anonymous on Saturday, February 07 2004 @ 02:15 PM EST
  • ditto - Authored by: Anonymous on Saturday, February 07 2004 @ 02:40 PM EST
  • Linus actually did say that - Authored by: Anonymous on Saturday, February 07 2004 @ 09:43 PM EST
    • No, he didn't - Authored by: Anonymous on Saturday, February 07 2004 @ 11:27 PM EST
      • No, he didn't - Authored by: Anonymous on Monday, February 09 2004 @ 08:36 PM EST
  • kicks - Authored by: auric on Sunday, February 08 2004 @ 01:54 AM EST
  • ... /rage/ reply - Authored by: Anonymous on Monday, February 09 2004 @ 09:50 PM EST
SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Anonymous on Saturday, February 07 2004 @ 12:28 PM EST
Is this the first time that the name "David Boies" has appeared on a
document or have I not been paying attention?

[ Reply to This | # ]

  • No, his name was on the others - Authored by: Anonymous on Saturday, February 07 2004 @ 03:47 PM EST
    • darl - Authored by: guido on Saturday, February 07 2004 @ 03:58 PM EST
      • darl - Authored by: Anonymous on Saturday, February 07 2004 @ 04:20 PM EST
Did IBM sign an agreement with Calera/SCOG
Authored by: Waterman on Saturday, February 07 2004 @ 12:29 PM EST
after Caldera changed there name to The SCO Group?

a) AT&T Technologies, Inc., AT&T Information Systems, Inc., or UNIX ™ Systems Laboratory Software Agreement No. SOFT---and AT&T Information Systems, Inc. Software Agreement Supplement for Software Product AT&T UNIX System V Release 4.0, or AT&T Information Systems, Inc. Schedule for Upgrades (from UNIX System V Release 3.1 to UNIX System V Release 3.2 or from UNIX System V Release 3.1 International Edition to UNIX System V Release 3.2 International Edition) or equivalent SCO Group License.

Looks like they are trying to use a later version of a license agreement than the ones signed by IBM to cover them selves and spread false information.

[ Reply to This | # ]

The 2.4.1-01 kernel and jfs source
Authored by: Anonymous on Saturday, February 07 2004 @ 12:30 PM EST
The 2.4.1-01 kernel they refer to is a 2.4.1 kernel with the rclock-2.4.1-01 patch applied. You can find the patch here .

What SCO has claimed is quite simple. They've claimed every line of code added by that patch. The only things they didn't claim is one document file and the make files.

The jfs source looks to be the original jfs-0.0.1.tar.gz which can be downloaded (along with all the later jfs updates) from here.
< br> Notice how all the code they reference is in a ref/ directory? That is the OS/2 copy of JFS that is provided as a reference to how JFS works. I haven't looked yet to see what they claim is theirs. I'm betting it's just structures that are almost identical between the OS/2 and AIX versions.

And for those wondering about Darl saying 2.2 kernels are clean, JFS was never merged into a 2.2 kernel. So that's how Darl can still say 2.2 is clean.

Dave "LordBeatnik"

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: venn on Saturday, February 07 2004 @ 12:30 PM EST
evms_aix.h starts with:

/*
* The following structures are nested within the structures used by the
* system management routines. These structures and sizes were pulled from the
AIX
* src tree.
*/

IBM did not copy from System V but it seems in this case they used structures
from the AIX tree.

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Nick_UK on Saturday, February 07 2004 @ 12:34 PM EST
OK, how-to groklaw. the kernel archives.

http://www.kernel.org/pub/linux/kernel/v2.4/ChangeLog-2.4.1

Nick

[ Reply to This | # ]

Remaining text
Authored by: Newsome on Saturday, February 07 2004 @ 12:41 PM EST
The remaining text has been done and sent to PJ.

---
Frank Sorenson

[ Reply to This | # ]

  • Remaining text - Authored by: tintak on Saturday, February 07 2004 @ 01:03 PM EST
    • Remaining text - Authored by: Anonymous on Saturday, February 07 2004 @ 01:24 PM EST
  • Remaining text - Authored by: Anonymous on Saturday, February 07 2004 @ 01:08 PM EST
  • thanks! - Authored by: Anonymous on Saturday, February 07 2004 @ 02:12 PM EST
SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Mark Levitt on Saturday, February 07 2004 @ 12:44 PM EST
My favorite lie by SCO:
54. At this point in time, IBM's UNIX expertise was centered on its own Power PC
processor. IBM had little or no expertise on Intel processors.

IBM. No expertise with Intel processors.

Are so SCO deluded that they think nobody will remember that "PCs"
were, just a short while ago" usually called "IBM PCs"

So somehow, IBM developed the desktop PC market without gaining any expertise of
the CPU that powered it?

Oh, and they wrote the OS/2 OS (which is SMP capable BTW) for Intel, but didn't
gain any expertise. Perhaps SCO thinks Microsoft did all those bits and IBM just
picked the colors.

[ Reply to This | # ]

Strange Contracts and Strange Bedfellows
Authored by: shareme on Saturday, February 07 2004 @ 12:48 PM EST
hmm I keep going back to the Novell SCO purchase of systemv agreement..

There had to be a reason why Novell kept the trade secrets and copyrights and
95% revenue from the agreement and SCO(Caldera) said yes and aggreed..

Could it be via the UCB/BSD vs ATT org case and first ruling that both parties
were aware of specific editions of systemv being under public domain via the
changes in copyright laws from 1978 to 1988?

and is this another high card IBM will play once SCO gives the definition of
systemV Unix and AIX? IBM did mention specificity of wanting to know what
editions did it not in its Response?

and what effect will this have the definition of derivative works SCO is now
talking about as opposed to the court's intrepretation of derviative works?



---
Sharing and thinking is only a crime in those societies where freedom doesn't
exist.

[ Reply to This | # ]

Quick summary of alleged copying
Authored by: Anonymous on Saturday, February 07 2004 @ 12:50 PM EST
Here are counts, grouped by Linux file, of the lines that SCO claims to have been improperly copied from AIX to Linux. I tried to arrange them in a nice tabular format, but even with the <PRE> tag it gets mangled, so you'll just have to mentally unwrap the line wraps:
include/linux/jfs/ref/jfs_inode.h ..
185
include/linux/evms/evms_aix.h ...... 241
include/linux/rclock.
(all)
kernel/rclock.c (all)
include/linux/kmemdef.h (all)
kernel/kmemdef.c
(all)
arch/i386/kernel/apic.c ............. 16
kernel/timer.c
...................... 17
arch/i386/kernel/entry.S .............
7
arch/i386/kernel/traps.c ............ 23
init/main.c .........................
12
(I did this in a hurry and I may have added wrong, but I don't think I'm too far off.)

Of 11 Linux source files, SCO claims four in their entirety, and 501 lines in the rest. Many of the claims are for fragments of fewer than ten lines. In some cases SCO claims that single isolated lines are theirs.

Without having the source code at my fingertips I don't know how big these files are, nor what percentage is alleged to have been copied.

Note that "rclock." probably should be "rclock.h". The presumed typo is present in the original.

Scott McKellar
http://home.swbell.net/mck9/sco/

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Anonymous on Saturday, February 07 2004 @ 01:02 PM EST
Their timeline is some of the most egregiously obfuscatory revisionist history I
have seen in a long time. It wasn't until the 386 with 32-bit protected mode
came out that Intel chips achieved some level of functional parity with the
various RISC chips, but it was well before that (on the 286 chip) that IBM began
developing OS/2. To indicate that IBM had no "expertise" in delivering
operating systems and compilers is deliberately false and insulting; they'd
already been successfully doing so for decades, on many chips, weaker by far
than the Intel chips. Further to indicate that Old SCO did somehow manage to
wring an "enterprise-hardened" OS out of the "limited processing
power" of the Intel chips, lends a faux heroism that is both false and
utterly unwarranted.

[ Reply to This | # ]

SCO not letting Linux off the hook
Authored by: Anonymous on Saturday, February 07 2004 @ 01:11 PM EST
There have been a number of statements here and elsewhere that the latest
amended complaint no longer involves Linux or trade secrets -- that it is about
IBM's continuing to distribute AIX after SCO purportedly terminated their
license.

I don't see a way to draw that conclusion.

SCO is still complaining that IBM improperly transferred technology from AIX to
Linux. That's still a trade secret claim, although it involves IBM's technology
rather than System V technology. Kevin McBride already admitted last December,
in open court, that there were no trade secrets in System V, so that's not a
change.

SCO has not abandoned its bizarre interpretation of derivative works, nor their
insistence on ignoring inconvenient provisions of the contracts. The latest
version of the complaint is still a crock, but it isn't as different from the
previous version as some people seem to think. What's different is the addition
of copyright claims, plus a degree of specificity that had been lacking until
now.

There may be other major differences as well. I haven't read the whole thing
yet either.

Scott McKellar
http://home.swbell.net/mck9/sco/

[ Reply to This | # ]

SCO's Second Amended Complaint ignores..
Authored by: Anonymous on Saturday, February 07 2004 @ 01:11 PM EST
>54. At this point in time, IBM's UNIX expertise was centered on its
own Power PC processor. IBM had little or no expertise on Intel
processors.

Various flavors of AIX were marketed by IBM for at least a decade before they introduced the Power PC in the RS/6000 line.

[ Reply to This | # ]

"SCO" refers to both oldSCO and newSCO
Authored by: cybervegan on Saturday, February 07 2004 @ 01:21 PM EST
Even in this recent document, they define SCO as meaning
*both* The SCO Group *and* Santa Cruz Operation.

Is this legal? Sounds to me like they're playing on the
widespread confusion about who is who, again. Viz:

"THE SCO GROUP, INC.,
a Delaware corporation,

Plaintiff,"

and also

" 65. Thereafter, Amendment X to Software Agreement
SOFT-00015, as amended, was executed on or about October
16, 1996 by and among IBM, The Santa Cruz Operation, Inc.
("SCO") "

So, which is it?

---
Stand and fight we do consider
Reminded of an inner pact between us
That's seen as we go
And ride there
In motion
To fields in debts of honor
Defending

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Jack Hughes on Saturday, February 07 2004 @ 01:23 PM EST
Hmmm. At first glance they appear to have simply
enumerated IBM's, possibly earliest, patches for various
contributions.

There isn't anything particularly clever about this - it's
just a dump of everything related to things like JFS,
RCU and EVMS that are present in other IBM operating
systems.

A lot of these patches never got incorporated into Linux -
certainly not in this form.

All it really gives is something specific that could be
argued over at a trial - thus allowing the case to
proceed. It doesn't actually mean that their is anything
wrong with the code, or that it came for AIX. It is
certainly not in SYSVR4.

[ Reply to This | # ]

They still haven't fixed the double definition of "SCO"
Authored by: Stephen on Saturday, February 07 2004 @ 01:24 PM EST

It has been observed many times before that The SCO Group's documents gloss over the distinction between The SCO Group and The Santa Cruz Operation. I was curious whether they had fixed this problem in the second amended complaint, because this certainly was a good opportunity to do so. They did not.

In the very first sentence they define "SCO" to mean "The SCO Group, Inc.":

Plaintiff, The SCO Group, Inc., a Delaware corporation ("SCO"), sues Defendant International Business Machines Corporation ("IBM") and alleges as follows:

Later, they define "SCO" to mean "The Santa Cruz Operation, Inc.":

65. Thereafter, Amendment X to Software Agreement SOFT-00015, as amended, was executed on or about October 16, 1996 by and among IBM, The Santa Cruz Operation, Inc. ("SCO") and Novell, Inc. ("IBM Amendment X" attached hereto and incorporated herein as Exhibit E). [....]

At this point, any good compiler would spit out a complaint about multiple definitions of the same symbol. :-)

Then The SCO Group takes advantage of the conflation to make a misleading statement:

194.[sic] Through an Asset Purchase Agreement dated September 19, 1995, as amended ("Asset Purchase Agreement," attached hereto with amendments as Exhibit "V") wherein Novell received 6.1 million shares of SCO common stock, valued at the time at over $100 million in consideration, SCO, through its predecessor in interest, acquired from Novell all right, title and interest in and to the UNIX and UnixWare business, operating system, source code, and all copyrights related thereto, as well as all claims arising after the closing date against any parties relating to any right, property, or asset included in the business.

Although a reasonable reading of this sentence would cause one to think that The SCO Group paid stock worth $100 million to Novell, in fact the first "SCO" ("SCO stock") refers to The Santa Cruz Operation, and the second ("SCO, through its predecessor in interest, aquired"), refers to The SCO Group. To make things even more confusing, "its predecessor in interest" is an oblique reference to the first SCO, The Santa Cruz Operation!

[ Reply to This | # ]

Boies
Authored by: Anonymous on Saturday, February 07 2004 @ 01:24 PM EST
Boies is on this one... he's obviously only being involved in the big parts
of this suit. The big parts are those that revolve around taking
possession of Linux. Boies is the high-powered consultant for the big
land grab. The rest is just a side show.

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Sesostris III on Saturday, February 07 2004 @ 01:36 PM EST
PJ,

Minor transcription mistake in Table D. The last entry in the Dynix column
should be "kernel/i386/startup.c", not
"kernel/i386/trap.c".

Incidentally, including this file, I can only count 16 files for AIX/Dynix, not
17. Could the IBM Lawyers have miscounted? or have SCO's Lawyers missed one
off?

J.


[ Reply to This | # ]

Can SCO change yet again?
Authored by: Anonymous on Saturday, February 07 2004 @ 01:39 PM EST
I'm glad that SCO has finally identified some actual lines of code. It won't be
long before the Linux folks research and identify the true origins of that
code.

It seems unlikely that the code in question actually belongs to SCO. However,
if it does, it will almost certainly be rewritten within the next few days.
Either way, it would seem that the rest of the industry should be safe from
SCO's childishness.

$5 billion is a ridiculous amount of money for such a little bit of code. I'm a
programmer. For that much money, I'll even write a lot more code. Where do I
sign up?

Now the question is: will the judge allow this new complaint? I prefer the new
complaint because it drops the more laughable claims. However, it sets a
dangerous precedent. If the change is allowed, SCO may just wait until its back
is against the wall again and file yet another complaint. Can SCO go back and
try to reinstate its original claims? Or file a new suit based on those
claims?

IMHO, the judge should do something to punish SCO for its behavior to date.
That may already be in the works. Last I heard, SCO had called a press
conference for last Friday afternoon. That conference apparently did not
happen.

[ Reply to This | # ]

line 10 termination ibm contract rights
Authored by: guido on Saturday, February 07 2004 @ 01:39 PM EST
10. To that end, SCO did everything reasonably in its power to exert a good
faith effort to resolve the termination of IBM’s UNIX contract rights.
Conversely, during the 100-day period, IBM did not set forth a single proposal
or idea for cure.

Somebody believes sco did everything REASONABLY in its power, ever?

[ Reply to This | # ]

SCO’s Creation of a Market for Intel – The Genesis of SCO OpenServer
Authored by: Anonymous on Saturday, February 07 2004 @ 01:40 PM EST
Are they kidding with the above section? They make it sound as if they were the
FIRST to put UNIX on an Intel processor.

We used AT&T Unix on Intel 386 machines about 14 years ago.

[ Reply to This | # ]

Look at the signature: June 2003!
Authored by: DH on Saturday, February 07 2004 @ 01:42 PM EST
I don't know how this PDF file was converted to text,
but it has an interesting end: it stops with paragraph 204 instead of 214 and
then reads:
"DATED this ___ day of June, 2003."

Did the conversion expose an older version of this file?

And if this is true, what are the legal implications?





[ Reply to This | # ]

SCO / Caldera
Authored by: dsoneil on Saturday, February 07 2004 @ 01:43 PM EST
It seems very interesting that new SCO is pretending to be old SCO and claiming
they were harmed by IBM dumping Monteray? I would think that Caldera (and their
management) would have liked that IBM was going to Linux since they just
completed a Linux based IPO.

I wonder if the judge will be able to seperate out the idea of 'harm' since in
2001 there were no issues and now it's an issue because Caldera couldn't sell
Linux.

[ Reply to This | # ]

SCOX's Good Job
Authored by: Anonymous on Saturday, February 07 2004 @ 01:51 PM EST
On one hand SCOX did a tremedous job! This document is so full of half-truths,
prevarications, and misleading statements that one is absolutely clueless where
to begin. I am overwhelmed and in utter awe.

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Anonymous on Saturday, February 07 2004 @ 02:06 PM EST
Hmmm....Maths not their strong point?

usr/include/jsf/inode.h 16-37 = 21 lines of code
whereas include/linux/jfs/ref/jfs_inode.h 84-95, 126-138 = 23 lines of code

kernel/sys/vnode.h 109-133 = 24 lines compared to
include/linux/jfs/ref/jfs_inode.h 96-122 = 26

Etc....

And this is stuff thats been copied directly?

[ Reply to This | # ]

Dropped Claims
Authored by: Anonymous on Saturday, February 07 2004 @ 02:13 PM EST
SCO dropped a whole bunch of claims in this complaint. Can IBM ask the
court to get reimburced by SCO for the work they put in preparing a defense
for them? (lawyer time, discovery, etc). Or can SCO just continue and change
their claims every 3 month and cause IBM financial harm this way? Is our legal
system really this screwed up?

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: blacklight on Saturday, February 07 2004 @ 02:31 PM EST
"114. In addition, § 2.01 limited use to the United States. This limitation
was modified in the Side Letter to include other countries, but at no time was
IBM granted the right to use the Software Products (including System V source
code, derivative works, modifications, documentation related thereto and methods
based thereon) in India. On information and belief, IBM has violated this
restriction by allowing the Protected Materials to be used in India."

The SCO Group is complaining about India, even as they are advertising for
Indian programmers?

[ Reply to This | # ]

No 38 is nonsense
Authored by: Anonymous on Saturday, February 07 2004 @ 02:37 PM EST
SCO says :

38. SCO’s early engineers faced difficult design challenges in modifying UNIX for effective use on an Intel processing platform. The principal design constraint centered on the limited processing power the Intel chip possessed in the early 1980’s. The Intel chip (designed as it was for personal computers) was not nearly as powerful as the enterprise RISC chips used by IBM, Sun, SGI and others in their respective UNIX offerings.

The product they're talking about here is XENIX c.1986 - and the problem had nothing to do with processor power, it was the primitive memory management of all Intel CPUs prior to the 386. I vaguely remember that an early XENIX ran on a 68k for this reason.

Also, the Intel CPUs of that era were not originally designed for PCs. In fact, Intel's main market (and the other CPU vendors too) was embedded systems such as phone switches. In 1986 they were just starting to think there might be a major market in this PC thing.

Moreover, I think SPARC did not appear outside the lab till 1987. Sun's line in 1986 was based on - guess - 68k and i386, running - wait for it - UNIX! SGI started with DEC VAX, moving to 68k and eventually MIPS.

In short, SCO's statement is nonsense. Here as everywhere else, they're substituting wishful thinking for research.

[ Reply to This | # ]

Para. 105 is a patent-type claim
Authored by: Anonymous on Saturday, February 07 2004 @ 02:39 PM EST
    105. RCU is a mechanism that can significantly improve the performance and scalability of multi-processor systems by allowing simultaneous access to data without the need for expensive and time consuming locking protocols. Dynix/ptx/RCU structures and sequences were originally offerred as a patch to the Linux 2.4 kernel by IBM, with rather limited functionality inside Linux 2.4. However, in the development of Linux version 2.6, the deployment of Dynix/ptx/RCU structures and sequences has spread into new uses inside Linux, including networking, device drivers, list management, and directory access. This demonstrates how improper contribution of a few hundred lines from Dynix/ptx has had a massive impact on Linux kernel efficiency, particularly relating to multi-processor functionality and processor memory synchronization.
That reads like a claim of patent infringement. It's a claim of broad ownership of a piece of technology. Is there any legal basis for this? As I understand it, SCO is not making any patent claims, and the trade secret claims have been withdrawn. On what basis can SCO then make a claim of broad ownership of a technology?

[ Reply to This | # ]

Fundamental problem with SCO's claims
Authored by: Anonymous on Saturday, February 07 2004 @ 02:40 PM EST
The first part of this document gives you the impression that SCO owns top
secret information that they licensed to IBM. The fundamental problem with all
this again is that SCO released all this information to the public! They
released it under the GPL to everybody. Even worse, employees of SCO directly
contributed to the development of Linux. They seem to completely ignore this
issue. If the fact that SCO released/licensed all this IP in question to the
world for free is addressed, everything else is irrelevant. HOW CAN THIS FACT
BE IGNORED?

[ Reply to This | # ]

But nothing of this is in linux-2.4
Authored by: Anonymous on Saturday, February 07 2004 @ 02:40 PM EST
Ok, so they obviously took files from three sources, namely
  1. http://cvs.sf.net/viewcvs.py/*checkout*/evms/runtim e/linux-2.4/include/linux/evms/evms_aix.h?rev=1.31
  2. http://oss.software.ibm.com/develop er/opensource/cvs/jfs/linux-2.2.12/include/linux/jfs/ref/Attic/jfs_inode.h?rev=1 .1
  3. http ://lse.sourceforge.net/locking/rcu/patches/rclock-2.4.1-01.patch
None of these were ever included in an official 2.4.x kernel, so they won't be able to sue linux-2.4 users. However, the United Linux 1.0 kernel contains both
http:// www.kernelnewbies.org/kernels/UL10/SOURCES/patches/50_evms and ht tp://www.kernelnewbies.org/kernels/UL10/SOURCES/patches/020_rcu-poll.

Th ese are part of kernel-source-2.4.19.*.nosrc.rpm, which used to be freely downloadable from ftp.sco.com. The jfs copies in United Linux and in linux-2.6 do not contain the ref/jfs_inode.h file.

Only RCU is present in linux-2.6, but by the time it was introduced with http://linux.bkbits.net:8080/linux-2.5/patch@1.781.37.1?nav=index.html|ChangeS et@-2y|cset@1.781.37.1, practically nothing of the original patch was left. The 2.6 version is similar to the one from United Linux.

[ Reply to This | # ]

What happened to The Open Group?
Authored by: sphealey on Saturday, February 07 2004 @ 02:44 PM EST
Through a series of corporate acquisitions, SCO presently owns all right, title and interest in and to UNIX and UnixWare operating system source code, software and sublicensing agreements, together with copyrights, additional licensing rights in and to UNIX and UnixWare, and claims against all parties breaching such agreements.
Um, where does The Open Group come into this? It would appear to me that if TOG does not take any action after this filing, they will probably have lost the ability to enforce their trademarks forever. Does some faction on TOG board intend that outcome?

sPh

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: StringCheesian on Saturday, February 07 2004 @ 02:45 PM EST
78. However, as is widely reported and as IBM executives knew, or should have known, a significant flaw of Linux is the inability and/or unwillingness of the Linux process manager, Linus Torvalds, to identify the intellectual property origins of contributed source code that comes in from those many different software developers. If source code is code copied from protected UNIX code, there is no way for Linus Torvalds to identify that fact.

As widely reported? Where? What a lie.

[ Reply to This | # ]

EVMS?
Authored by: Anonymous on Saturday, February 07 2004 @ 02:52 PM EST

I really like this part: "Tools with this level of sophistication and performance were entirely unavailable and unknown to the open source development community prior to IBM's improper transfer to Linux."

Irony is that EVMS was never accepted by Linus and was never included in any official kernel. LVM2 is included in Linux 2.6 instead and EVMS folks are busy porting user-level tools right now.

What other proof is needed to make it clear Linux developers can implement "enterprise-level" capabilities without borrowing from other sources?

On other side there is interesting question: if current version of EVMS does not have code SCO is talking about and said code was never accepted by Linux developers and thus was never "contributed" to Linux then what exactly we are talking about ?

[ Reply to This | # ]

  • EVMS? - Authored by: Anonymous on Saturday, February 07 2004 @ 03:09 PM EST
  • EVMS? - Authored by: Anonymous on Saturday, February 07 2004 @ 03:17 PM EST
  • EVMS? - Authored by: bruce_s on Sunday, February 08 2004 @ 08:39 AM EST
SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Anonymous on Saturday, February 07 2004 @ 02:54 PM EST
"1. UNIX is a computer operating system program and related software and documentation originally developed by AT&T Bell Laboratories (“AT&T”). UNIX is widely used in the corporate, or “enterprise,” computing environment."

2. Through a series of corporate acquisitions, SCO presently owns all right, title and interest in and to UNIX and UnixWare operating system source code, software and sublicensing agreements, together with copyrights, additional licensing rights in and to UNIX and UnixWare, and claims against all parties breaching such agreements. Through agreements with UNIX vendors, SCO controls the right of all UNIX vendors to use and distribute UNIX. These restrictions on the use and distribution of UNIX are designed to protect the economic value of UNIX.

Can they still get away with saying this? This seems like this is provably false. To wit:

The Open Group holds the definition of what a UNIX system is and its associated trademark in trust for the industry.

...

Today, the definition of UNIX ® takes the form of the worldwide Single UNIX Specification integrating X/Open Company's XPG4, IEEE's POSIX Standards and ISO C. Through continual evolution, the Single UNIX Specification is the defacto and dejure standard definition for the UNIX system application programming interfaces. As the owner of the UNIX trademark, The Open Group has separated the UNIX trademark from any actual code stream itself, thus allowing multiple implementations. Since the introduction of the Single UNIX Specification, there has been a single, open, consensus specification that defines the requirements for a conformant UNIX system.

http://www.unix-systems.org /what_is_unix.html

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: grayhawk on Saturday, February 07 2004 @ 03:09 PM EST
"2. Through a series of corporate acquisitions, SCO presently owns all
right, title and interest in and to UNIX and UnixWare operating system source
code, software and sublicensing agreements, together with copyrights, additional
licensing rights in and to UNIX and UnixWare, and claims against all parties
breaching such agreements. Through agreements with UNIX vendors, SCO controls
the right of all UNIX vendors to use and distribute UNIX. These restrictions on
the use and distribution of UNIX are designed to protect the economic value of
UNIX."

Sheesh talk about we own it all. They seem to forget there are a number of Unix
operating systems they do NOT own any rights to starting with Minix and ending
with OpenBSD.

"3. A variant or clone of UNIX currently exists in the computer marketplace
called “Linux.” Linux is, in material part, based upon UNIX source code and
methods."

There are numberous operating systems that one could call a clone or variant of
Unix including MacOSX, FreeBSD, OpenBSD, Minix and others.

They sure like to ignore what doesn't seem to fit into their vision of the Unix
world.

Also they feel that their Unix system is the basis for all and ignore the fact
that there are Unix standards as set out by the Unix Standards Body that when an
OS complies with these it can call itself Unix without having any code from
their UNIX System V source code.

Their information is full of more holes than a good quality Swiss cheese.

---
All ships are safe in a harbour but that is not where they were meant to be.

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: jmc on Saturday, February 07 2004 @ 03:09 PM EST
Has anyone actually looked at the files claimed in this little work of fiction?

Firstly I thought that 2.2 versions of Linux were "clean"? So what are
they doing being referred to in Table A?

I'll dig out some old CD's with 2.2 on but looking on my machine 2.4.22 I see.

Table A: The path names seem to be wrong but assuming they mean fs/jfs in
front:

jfs_inode.h is less than 84 lines long so it is entirely meaningless

Table B: There is no evms so this is meaningless

Table C: There isn't an "rclock.* or kmemdef.* anywhere

Table D: In apic.c the first block of lines quoted are some #includes, the
second block is in the middle of a printk statement, the third block is some
random lines in a function.

In timer.c the first block is an include and a comment, the second block is a
comment, the third block is the beginning of a function.

In traps.c - includes, a printk, half of one function and the start of another,
something about APIC in the middle of a function, an asm statement, a switch in
math_error,

In main, some includes and a random bit plus comments in the middle of a
function.

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Anonymous on Saturday, February 07 2004 @ 03:20 PM EST
Here are some of code tidbits from Linux kernel 2.4.1 per
listed by SCO. Some of lines being counted were blank so they got lost in the
formatting.
There is not even a complete code segment here. In many cases they are simply
comments or blank lines. Surely they jest...

arch/i386/kernel/apic.c 25-28

#include <asm/smp.h>
#include <asm/mtrr.h>
#include <asm/mpspec.h>

arch/i386/kernel/apic.c 662-664

* useful with a profiling multiplier != 1
*/
if (!user)

arch/i386/kernel/apic.c 676-684

prof_counter[cpu] = prof_multiplier[cpu];
if (prof_counter[cpu] != prof_old_multiplier[cpu]) {
__setup_APIC_LVTT(calibration_result/prof_counter[cpu]);
prof_old_multiplier[cpu] = prof_counter[cpu];
}

#ifdef CONFIG_SMP
update_process_times(user);
#endif

kernel/timer.c 26-29

#include <asm/uaccess.h>

/*
* Timekeeping variables

kernel/timer.c 681-683

#endif
mark_bh(TIMER_BH);
if (TQ_ACTIVE(tq_timer))

kernel/timer.c 688-697


/*
* For backwards compatibility? This can be done in libc so Alpha
* and all newer ports shouldn't need it.
*/
asmlinkage unsigned long sys_alarm(unsigned int seconds)
{
struct itimerval it_new, it_old;
unsigned int oldalarm;


arch/i386/kernel/entry.S 199-205

cmpl $(NR_syscalls),%eax
jae badsys
testb $0x02,tsk_ptrace(%ebx) # PT_TRACESYS
jne tracesys
call *SYMBOL_NAME(sys_call_table)(,%eax,4)
movl %eax,EAX(%esp) # save the return value
ENTRY(ret_from_sys_call)

arch/i386/kernel/traps.c 52-54

asmlinkage int system_call(void);
asmlinkage void lcall7(void);
asmlinkage void lcall27(void);

arch/i386/kernel/traps.c 244-247

if (info)
force_sig_info(signr, info, tsk);
else
force_sig(signr, tsk);

arch/i386/kernel/traps.c 331-334

gp_in_kernel:
{
unsigned long fixup;
fixup = search_exception_table(regs->eip);

arch/i386/kernel/traps.c 542-545

if ((tsk->ptrace & (PT_DTRACE|PT_PTRACED)) == PT_DTRACE)
goto clear_TF;
}

arch/i386/kernel/traps.c 659-662

info.si_code = __SI_FAULT;
info.si_addr = eip;
/*
* The SIMD FPU exceptions are handled a little differently, as there

arch/i386/kernel/traps.c 718-721

{
#if 0
/* No need to warn about this any longer. */
printk("Ignoring P6 Local APIC Spurious Interrupt Bug...n");

init/main.c 30-33

#include <asm/io.h>
#include <asm/bugs.h>


init/main.c 609-616

#ifdef CONFIG_BLK_DEV_INITRD
static int do_linuxrc(void * shell)
{
static char *argv[] = { "linuxrc", NULL, };

close(0);close(1);close(2);
setsid();

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Anonymous on Saturday, February 07 2004 @ 03:38 PM EST
I am just a layman in legalese, however it seems to be that this amended
complaint is the first real powerful challenge to IBM. And if I divorce myself
from a "techie" (how I hate the word, but I hear it every day and it
symbolises something) viewpoint; this counterclaim acutally seems to have a
foundation (at least the most sturdy that I have seen so far).

It seems to hinge on the fact that IBM's contract with AT&T (or SYSV
licencee) stipulates that revisions to the base SYS V incorporated in the
product called "AIX" will be classified as derivative works that are
covered under the same terms as their SYS V licence.

We cannot look at this technically. The legal interpretation is what is most
important.

I have seen comments in this thread that SCO selectively quoted pertainent areas
of the contract without the "exceptions". Does anyone have any
information on these "exceptions". For e.g. if the origin of the
derived code came from OS/2 in the case of journaling, does this mean that it is
ok to contribute it to Linux ? If so maybe only from the OS/2 port, and not with
the intellectual property in converting structures etc to AIX; because AIX is a
derivative of SYS V, and thus these structures are also part of that
derivative.

On the case of the Sequel contributions is looks even worse for IBM; unless this
came from another non-SYS V OS orginally, and even then, if data structures from
Dynix were copied... what does that mean ?.

The last line of defense comes down to source code comparisons, hopefully all
the SCO allegations will be kicked out and it won't get that far. If it does,
and it is a fact that very little code, especially in proportion to the total
code base, has been directly copied from the "derivative"; then how
much would that matter ? In a courtroom, with a judge, and a community looking
at it from a non-technical viewpoint; and a talented lawyer arguing intent, and
making himself seem to be a david fighting against Goliath? They seem to have
built a very good argument in this counterclaim.

I am not pro-SCO; nor am I pro-IBM, especially after reading this counterclaim.
I know from a fact speaking to top SUN people, months ago, that they had a
similar impression of IBM's tactics; they had studiend their licences, and could
not understand the gift of hard produced IP to an OS model; even though they now
seem to be contributing in a small way to OS Linux.

The commercial effort that went into SYS V derivatives, and "UNIX"
over they years, and the implicit "cartel" in preserving this value,
seems to have been embodied in the licencing contracts, and there is a probably
a secret cheerleader club in the UNIX SYS V licencee community supporting SCO
(financially and motively).

It cannot be denied that IBM royally pissed off the club who relied on this
intellectual property stream, and if they broke the law in doing so, then so be
it. It could be that this Goliath, set out to purposely crush competitors in the
UNIX / middle iron ecosystem which had been gradually shrinking anyway; just
plain old opportunity : business as usual for these guys. I can't falt them for
trying it's what any "good" (only in quotes so as not to offend
minority sensibilities) capitalist shareholder would expect of them.

The people who I really sympathise with are the rank and file in this industry
and ecosystem, hopefully they will just shift laterally into other positions.

Today, my primary stance is pro-Open Source. Screw all the rest of them, I just
hope that neither the Open Source movement; nor Mr. Torvalds in particular (who
they seem to targeting specifically in the CounterClaim) suffer any damages from
this (financial or otherwise, the Linux community including Mr. T is already
suffering emotionally and psychologically).

And I must say that I don't "like" Mr. McBride, but if he pulls this
off, and this counterclaim is the first real hint that he might, then hats off
to him..... and what a sad day it would be for the majority of us.

[ Reply to This | # ]

Malformed Quotes Again
Authored by: Anonymous on Saturday, February 07 2004 @ 03:43 PM EST
"... (?SCO?), sues Defendant International Business Machines Corporation
(?IBM?) ..."

Someone has been using SmartQuotes(TM) :) Please don't do that because they
depend on using a Microsoft-specific character encoding for your fonts. It
renders correctly on some browsers and platforms but not others.

[ Reply to This | # ]

Big words
Authored by: jccooper on Saturday, February 07 2004 @ 03:52 PM EST
Linux is "replete with protected technology", huh? Someone's been
using their thesaurus and not their dictionary.

[ Reply to This | # ]

SCO's take on their contract
Authored by: Anonymous on Saturday, February 07 2004 @ 03:54 PM EST
I have two questions. The first is regarding SCO's point of view on their UNIX
contract with IBM. It appears that SCO is claiming that source code IBM puts
into the AIX source tree becomes SCO's property, and that IBM cannot use said
source code anywhere else without violating their contract. However, let's use
the JFS code as an example. I don't know, but I would assume (and, in this
case, hope) that IBM received a copyright for the JFS code in question. Now,
under SCO's apparent definition of the contract, does IBM's copyright now get
transferred to SCO simply because IBM included the JFS source in AIX? That
would very much go against SCO's very public claims that copyrights cannot be
accidentally transferred in such a manner (such as when they willfully
distributed their own version of Linux). And if so, does that mean that IBM
would then need to receive permission in order to use their own copyrighted JFS
code in OS/2?

My second question is regarding the location of this trial. Why is it in Utah?
If SCO, Inc. is a Delaware corporation, shouldn't the trial be held in Delaware?
Just a question from an uninformed layman.

[ Reply to This | # ]

Odd kernel version - RedHat??
Authored by: Anonymous on Saturday, February 07 2004 @ 03:57 PM EST
Hmmm.. 2.4.1-01 ?? That sounds line a RedHat version, not a generic Linux
tree?!?

The lines referred to by the document seem odd, as if the "relevant"
lines are sometimes shifted. If SCO doesn't refer to a generic Linux tree,
things become even more complicated.

[ Reply to This | # ]

A quick rundown on kernel/timer.c lines 26-29, 681-683, 688-697
Authored by: Anonymous on Saturday, February 07 2004 @ 04:17 PM EST
Folowing lines are from the mentioned 2.4.20 kernel extracted from the following
file:
ftp://ftp.kernel.org/pub/linux/kernel/v2.4/linux-2.4.20.tar.gz

26-29
#include <asm/uaccess.h>

/*
* Timekeeping variables

681-683
vxtime_lock();

ticks = jiffies - wall_jiffies;

688-697
vxtime_unlock();
write_unlock_irq(&xtime_lock);
calc_load(ticks);
}

void timer_bh(void)
{
update_times();
run_timer_list();
}

By the comments in the beginning of the file timer.c we see that four persons
have been modifying this file in addition to Linus himself.

/*
* linux/kernel/timer.c
*
* Kernel internal timers, kernel timekeeping, basic process system calls
*
* Copyright (C) 1991, 1992 Linus Torvalds
*
* 1997-01-28 Modified by Finn Arne Gangstad to make timers scale better.
*
* 1997-09-10 Updated NTP code according to technical memorandum Jan '96
* "A Kernel Model for Precision Timekeeping" by Dave
Mills
* 1998-12-24 Fixed a xtime SMP race (we need the xtime_lock rw spinlock to
* serialize accesses to xtime/lost_ticks).
* Copyright (C) 1998 Andrea Arcangeli
* 1999-03-10 Improved NTP compatibility by Ulrich Windl
*/

Went through the persons in the http://kt.zork.net/kernel-traffic/quotes.html

Couldn't find anything mentionable about Finn Arne Gangstad.

No quotes from Dave Mills. The homepage of Dave Mills can be found here
http://www.eecis.udel.edu/~mills/

Quotes from Andrea Arcangeli can be found from
http://kt.zork.net/kernel-traffic/quotes/Andrea_Arcangeli.html

Biografy of Andrea Arcangeli can be found here
http://www.ukuug.org/bios+profiles/AArcangeli.shtml

Quotes from Ulrich Windl can be found from
http://kt.zork.net/kernel-traffic/quotes/Ulrich_Windl.html

Looks like both Andrea and Ulrich have worked with Issue #8, Section #5 (4 Mar
1999: Scheduler Resolution)

In addition to kernel-traffic quotes there is a nice tool called Linux Cross
Reference http://www.iglu.org.il/lxr/blurb.html. I'm not sure though how old
kernels it does contain.

Searched for a couple of functions and only funtion which did seem to be only
included in the timer.c was calc_load.

http://www.iglu.org.il/lxr/ident?i=calc_load

I don't know if there is any use for this information or not but here it is,
like it or not :)

[ Reply to This | # ]

Digression: this complaint, as seen from far away
Authored by: lipinger on Saturday, February 07 2004 @ 04:18 PM EST
I like this complaint text. Mostly, it's a good and enlightened read.

The complaint text boils down to: "it was very good to convert towards
services and open source years ahead of other, less prudent or otherwise blessed
companies". I.e., it will boil down to this when read in ten or twenty
years.

This will persist as the core sentence of the text, as in a decade hardly
anybody will have an eye for this text's wide denegation of the autonomy of
Linu[sx]' technical development. Because (1): everybody will know the gospel
(and process and existence of changelogs...) of that famous, common open thing.
And because (2): good old and deserving AIX will not enjoy much relevance and
commemoration then.

Just now, during this suit, everybody gets caught by such punch lines like how
the astonishing "same building that was previously the UNIX Technology
Center" was transferring protected source literals by feng-shui [92]. Note
- besides such, the text widely tells the plain truth: after decades of teaching
and evolving and using computers, OSes and with that UNIX, people were ready to
re-implement in shorter time and in many aspects better, being helped by
hindside and number. Now, those methods and concepts did not have to be
transmogrigrated by walls any more, they were known by heart (and re-elaborated
by, erm, labor).

Now *is* a watershed moment. Many managers and lawyers are learning right now
the words and concepts of all this tech stuff, and many technicians (e.g. MSCEs)
learn about social aspects in general and the accumulating benefit of
non-rivalry of information in particular.

People are being informed right now that fire-making is possible for normal
people. They even begin to think about the possibility of making fire
themselves. Maybe where and as often as they like. Think about that: even
children would be able to make fire. And terrorists. What a threat! And what
will become of those rich masters (with shiny armors) (and cars) (and influence)
that manufacture the fire in their closed castles? What will become of the
people with the funny hats and frightening masks that are needed to carry the
fire to people's caves (make that 'e.g. MSCEs' again)? And what if somebody in
another country also would chose to make fire, invent steam engines and drive
all our cart pulling industry out of business?

This *is* a watershed moment, SCO's complaint tells the story quite well, and
they really have a cause for their embarrassing whining. They even would have a
cause (as in suit), just if linux really would be such a close successor to AIX
(i.e. that textually, literally evolved successor they insinuate all over the
place).

---

If, hypothetically, IBM had a team planning strategic PR, perhaps close to or
directly reporting to The Boss, this team certainly would like to come up with
an idea to place and connect such a gospel so visibly next to the moment of
conception of the big new IT era.

[ Reply to This | # ]

These files and line numbers add NO new information
Authored by: Anonymous on Saturday, February 07 2004 @ 04:27 PM EST
There seems to be a lot of confusion here about these files and line numbers.

These files and line numbers given are simply the files and lines which
implement RCU, NUMA and JFS in Linux. All of them.

Although this APPEARS to be specific. It is of course not any more specific than
what SCO already has claimed; I.e. that "RCU, NUMA and JFS are
infringing".

SCO has yet to show how these infringe on SysV copyrights.

Nor have they shown that these technologies really were copied from Dynix or
AIX.

This is just typical SCO behavior. Same claims, only formatted to look like
they're being specific.

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Anonymous on Saturday, February 07 2004 @ 04:43 PM EST
Think about what SCO has to overcome to win the copyright claims resulting from
their claimed termination of IBM's contract.

1. IBM's contract and irrevocable, perpetual and fully paid up
2. SCO did not--and still does not--have adequate evidence to justify
terminating IBM's contract
3. SCO failed to act in good faith by not informing IBM exactly what they did
wrong
4. SCO failed to act in good faith by not giving IBM a chance to cure the
alleged wrongful acts
5. IBM's side letter and/or amendments give them ownership of their AIX code
6. It's likely there is very little SysV code left in AIX
7. Even if IBM violated their contract as alleged by SCO, the injury is not
severe enough to merit terminating IBM's contract
8. Novell waived SCO's right to terminate IBM's contract
9. Novell gave IBM permission to distribute the code to Linux
10. Novell disputes SCO's ownership of the SysV copyrights and therefore SCO
must finish the lawsuit against Novell before they can make any copyright
infringement claims against IBM
11. Much of SysV is public domain because of AT&T's failure to put copyright
notices on the source files before copyright law was changed
12. Much of the code in SysV is also contained in BSD-Lite and its distribution
is therefore unrestricted
13. Much of the code in SysV is also contained in the ancient Unixes releases
under a BSD-like license by Caldera
14. Any code that is in SysV that is not covered by 11-13 above is obsolete and
virtually worthless today and therefore any damage caused to SCO by illegal
distribution is negligible

Can anyone think of any more?

[ Reply to This | # ]

Read Copy Update Mutual Exclusion
Authored by: Anonymous on Saturday, February 07 2004 @ 04:44 PM EST
One interesting quote from the page: http://lse.sourceforge.net/locking/rcupdate.html
Read-Copy Update was originally designed for DYNIX/ptx, a UNIX operating system from Sequent Computer Systems Inc., now a part of IBM. Similar methods were also used for Tornado and K42 OS projects at University of Toronto and IBM Research.

[ Reply to This | # ]

SCO needs technical consultants that can read
Authored by: Anonymous on Saturday, February 07 2004 @ 04:46 PM EST
78. However, as is widely reported and as IBM executives knew, or should have
known, a significant flaw of Linux is the inability and/or unwillingness of the
Linux process manager, Linus Torvalds, to identify the intellectual property
origins of contributed source code that comes in from those many different
software developers. If source code is code copied from protected UNIX code,
there is no way for Linus Torvalds to identify that fact.

This is outrageous. Did they ever even look at a changelog at kernel.org? The
changes are attributed (by email address). The changes are added under the GPL
which requires if any protected code is added that it be removed.

[ Reply to This | # ]

Why did they wait so long?
Authored by: Anonymous on Saturday, February 07 2004 @ 04:47 PM EST
This is the first actual reference of specific line numbers of code. Why is it
that this is in an amendment to an emendment to an amendment? Why didn't they
come out with this in the very beginning when everyone was asking for it? I
guess because in the beginning they said SysV was copied into Linux and they
know they don't have any proof of that.

So they found a few bits that are in AIX that have been contributed to Linux
and I guess SCO is trying to lay claim to AIX as a whole even if certain pieces
were written from scratch or came from somewhere other than SysV. Maybe it will
keep their stock from bottoming out on Monday if it does nothing else.

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Anonymous on Saturday, February 07 2004 @ 04:47 PM EST
80. The first versions of Linux evolved through bits and pieces of various contributions by numerous software developers using single or dual processor computers. Unlike IBM, virtually none of these software developers and hobbyists had access to enterprise-scale equipment and testing facilities for Linux development. Without access to such equipment, facilities and knowledge of sophisticated development methods learned in many years of UNIX development it would be difficult, if not impossible, for the Linux development community to create a grade of Linux adequate for enterprise use.

More rubbish from SCO. By way of example ... one of the most usable early Linux distros was MCC Linux, from Manchester University in the UK - the same place where the world's first stored-program computer was operated on 21st June 1948.

SCO are right that if anyone knows about sophisticated development methods, it's IBM. That's one reason why they went for Linux - they recognised the power of the development methodology. On one view, the Linux development method is Brooks's Chief Programmer Teams, made to actually work on a large scale - something IBM had been trying to achieve for a long time. No wonder they went for it.

[ Reply to This | # ]

Lies, Damned Lies, and SCOGistics
Authored by: rand on Saturday, February 07 2004 @ 04:57 PM EST
196. In Amendment No. 2 to the Asset Purchase Agreement, Novell and SCO made clear that SCO owned all "copyrights and trademarks owned by Novell as of the date of the [Asset Purchase Agreement] required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies," and that Novell would not longer be liable should any third party bring a claim against SCO "pertaining to said copyrights and trademarks." (Exh. V, Amendment No. 2 to the Asset Purchase Agreement dated October 16, 1996 at I).
No, no, no, no, no.
It says quite plainly
All copyrights and trademarks, except for the copyrights and trademarks owned by Novell as of the date of the Agreement required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies. However, in no event shall Novell be liable to SCO for any claim brought by any third party pertaining to said copyrights and trademarks.
In other words, SCO can have some of the rights, but Novell doesn't make any guarantees. SCO screws up, SCO's on its own. SCO gets sued, Novell won't indemnify (hmmm...where have I heard that term?).

Cute how SCOG had to leave the sentence unfinished and substitute their own interpretation, huh? Like no-one will notice. Well, besides the media and clueless investors.

---
The Wright brothers were not the first to fly an aircraft...they were the first to LAND an aircraft. (IANAL and whatever)

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Anonymous on Saturday, February 07 2004 @ 05:44 PM EST
"80. The first versions of Linux evolved through bits and pieces of various
contributions by numerous software developers using single or dual processor
computers. Unlike IBM, virtually none of these software developers and hobbyists
had access to enterprise-scale equipment and testing facilities for Linux
development. Without access to such equipment, facilities and knowledge of
sophisticated development methods learned in many years of UNIX development it
would be difficult, if not impossible, for the Linux development community to
create a grade of Linux adequate for enterprise use."

http://samba.org/~anton/e10000/

24 cpus SMP in September 2000? Check

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Anonymous on Saturday, February 07 2004 @ 06:00 PM EST
I do so miss Joseph Campbell. I'm sure Professor Campbell would delight in
making parallels between this modern mythology and the writings of indiginous
cultures. He might somehow draw analogies to the painting of a warriors face in
preparation for battle. Or, maybe the dream ventures an adolescent must take
prior to becoming a man.

I miss his wisdom.

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Anonymous on Saturday, February 07 2004 @ 07:17 PM EST
I've only skimmed it, and they do a good job building up
all these IBM public statements about wanting to help
Linux grow up, but then they spoil it all with a bit of
fallacious reasoning:

"97. The only way that the pathway is an "eight-lane
highway" for Linux to achieve the scalability, SMP
support, fail-over capabilities and reliability of UNIX is
by the improper extraction, use, and dissemination of the
proprietary and confidential UNIX source code, derivative
works and methods. Indeed, UNIX was able to achieve its
status as the premiere operating system only after decades
of hard work, beginning with the finest computer
scientists at AT&T Bell Laboratories, plaintiff's
predecessor in interest."

Sorry, that isn't the ONLY way. They obviously forget
about all those non-UNIX OS's out there that have similar
features (gee, most of them built by IBM too, who would
have thunk?). They also forget that the "decades of hard
work" mostly went into developing the concepts and
methods, not the final code. Where those concepts and
methods are not protected as trade secrets or by patents,
then anyone can bolt them onto their OS and catch-up in
lightning time compared to the original developement.

After that, my eyes glazed over, so I can't pass judgement
on their efforts to prove that statement true.

John.

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Anonymous on Saturday, February 07 2004 @ 07:26 PM EST
From Table D:

Dynix Line #s Linux Line #s
kernel/i386/trap.c 2054 init/main.c 30-33,609-616

How could a single line from Dynix (number 2054) occur at lines 30-33 and
609-616?

I thought if you were cutting and pasting lines from one file to another you
would get the same number of lines.

[ Reply to This | # ]

Whens its all over
Authored by: Anonymous on Saturday, February 07 2004 @ 07:46 PM EST
maybe someone could get microsoft to sue apple for copywrite infringment so we
all have something to talk about when this is over (and SCO have gone back into
their little hole) anyone noticed SCO are worth very much less today than they
were a few years back? $1Bn would really help them

[ Reply to This | # ]

This is the key paragraph that will govern
Authored by: MrEd on Saturday, February 07 2004 @ 08:10 PM EST
Nothing in this agreement shall prevent LICENSEE from developing or marketing
products or services employing ideas, concepts, know-how or techniques relating
to data processing embodied in SOFTWARE PRODUCTS subject to this Agreement,
provided that LICENSEE shall not copy any code from such SOFTWARE PRODUCTS into
any such product or in connection with any such service and employees of
LICENSEE shall not refer to the physical documents and materials comprising
SOFTWARE PRODUCTS subject to this Agreement when they are developing any such
products or service or providing any such service.

SCO has to prove that there is direct copying of SysV code to AIX or that
programmers were referring to protected physical documents of SOFTWARE PRODUCT.

As far as I can see this would be their only hope.

---
MrEd... living proof that you don't have to be smart to use and love linux.

[ Reply to This | # ]

SCO Libel Linus?
Authored by: Anonymous on Saturday, February 07 2004 @ 08:18 PM EST
Am I mistaken, or did SCO just libel Linus in #78?
Since when has Linus Torvalds been unable and/or unwilling to identify the IP of
those who contribute their code to linux? AFIA Linus is more than willing to
give credit where credit is due. In fact, to do so is a central tennet of his
chosen license, the GPL... oh, sorry, I forgot that SCO claims the GPL is
illegal.

So, does this libel Linus?

--------------------------
78. However, as is widely reported and as IBM executives knew, or should have
known, a significant flaw of Linux is the inability and/or unwillingness of the
Linux process manager, Linus Torvalds, to identify the intellectual property
origins of contributed source code that comes in from those many different
software developers. If source code is code copied from protected UNIX code,
there is no way for Linus Torvalds to identify that fact.
---------------------------

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Anonymous on Saturday, February 07 2004 @ 08:21 PM EST
After peering over some of the files, I found that I only had 6 of the files
mentioned for my 2.4 kernel. After researching briefly on the net, some
appeared to have existed long before IBM was involved. I suspect that some of
the files had been copying from public domain free code into their own and had
doctored it up at best. As for the JFS, my file was only about 20 lines long
and contained only a couple declarations and comments.

Just my thoughts.

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Anonymous on Saturday, February 07 2004 @ 08:28 PM EST
I'm beginning to wonder if they are looking at their own Linux distro. Hmmm.

[ Reply to This | # ]

Copyrights, derivative works and how it applies...
Authored by: quikndead on Saturday, February 07 2004 @ 08:47 PM EST
(The following is my (mybecq) comment from slashdot, I think it has more relevance here, and is more likely to be critiqued by people that know something.) Here is the crux of the (contract) case:
[A] personal, nontransferable and nonexclusive right to use in the United States each Software Product identified in the one or more Supplements hereto, solely for Licensee’s own internal business purposes and solely on or in conjunction with Designated CPUs for such Software Product. Such right to use includes the right to modify such Software Product and to prepare derivative works based on such Software product, provided the resulting materials are treated hereunder as part of the original Software Product.
Copyright law states:
The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work...
Thus, IBM owns the copyrights to any files that it created. This is because each individual file that was written is considered a separate work (I believe).

Furthermore, SCO has no copyrights to IBM's code (they only own copyright to their own code, that's why they can't force IBM to give it to them). Quoting copyright law:
The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
According to SCO:
Such right to use includes the right to modify such Software Product and to prepare derivative works based on such Software product, provided the resulting materials are treated hereunder as part of the original Software Product.
So perhaps it is possible that IBM violated the contract by not keeping any contributed source within the license scope, although did they not meet this condition by keeping the AIX derivative work to themselves? (The materials being the final derivative work that is AIX.) They are free to use their own copyrighted code wherever they please. Of course IANAL, so judge for yourself.

[ Reply to This | # ]

RCU patch
Authored by: Anonymous on Saturday, February 07 2004 @ 08:48 PM EST
I hope I'm not repeating anything...

According to the documentation :

RCU based on original DYNIX/ptx code (released by IBM under GPL)

If SCO really does own rights to that code, then there may actually be something to the contract claims. If, as has been said, this is not an official patch, no one but IBM would be liable.

I hope I'm not repeating anything...

[ Reply to This | # ]

... If the Judge Says Yes
Authored by: dcs on Saturday, February 07 2004 @ 08:52 PM EST
I hope the Judge says yes. IBM will obliterate these charges.


---
Daniel C. Sobral

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Anonymous on Saturday, February 07 2004 @ 08:57 PM EST
With SCO atlering its admendments, I think IBM should create its own
admendments. Such as

Stoping all SCO Linux Licencing plans and the fear letters until SCO has proven
that SCO's UNIX is in LINUX.

[ Reply to This | # ]

Interfering with a contract?
Authored by: Anonymous on Saturday, February 07 2004 @ 09:05 PM EST
Such chutzpah! As if suing Red Hat's customers or telling IBM's that they could no longer use AIX somehow wasn't grossly interfering with a contract?

[ Reply to This | # ]

SCO is the owner of... programming tools, documentation
Authored by: Khym Chanur on Saturday, February 07 2004 @ 09:29 PM EST
SCO is the owner of copyright rights to UNIX software, source code, object code, programming tools, documentation related to UNIX operating system technology, and derivative works thereof. [Emphasis added]
So, since this is a legal document, can a lawyer tell me what "SCO is the owner of copyrights to" means in this context? Is it saying that they own some UNIX related programming tools and documentation, or all of it? If it's just some, then they'd have to show that the particular tools/docs they claim copyright to somehow got invovled with Linux, but their "Fifth cause of action" (parts 173 to 180) doesn't say anything about that. If it's all, then aren't they claiming things like The Design and Implementations of the 4.x BSD Operating System, the Single UNIX Specification, and so on?

Secondly, why are they throwing in "programming tools"? It doesn't seem to have anything to do with anything else they've said in either the court of the press. Are they going to start claiming that IBM's contributions to GCC (if any) contributed to damages against SCO? Are they going to claim that they they own the C language, and so All Your Code Are Belong To Us?

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Anonymous on Saturday, February 07 2004 @ 09:29 PM EST
This is complete lunacy! SCO's logic is full of perforations waiting to be
ripped! Does SCO think everyone else is stupid? They are definitely playing
this judge for a fool. Never underestimate your opponent? Oh! SCO doesn't need
to consider anyones opinion, they are perfect and everyone else is imperfect.
Can SCO really expect people to believe that IBM never dabbled in operating
systems? IBM had to gather everything it knows from outside companies or else
IBM would be shit out of luck? I get it! IBM didn't know anything about
operating systems so they had to ask Bill Gates! never mind the fact that Apple
was becoming a defacto standard and probably unwilling to let IBM's nose into
their tent(Were they right?). IBM doesn't take their products lightly! IBM's
reputation hinges on its attention to detail, which is not a fault in my book.
Put IBM's software up against anyone elses software and then claim its all shit
except for the parts they licensed from others. SCO is breaking new ground in
their exclamations. Without SCO no one is capable of creating anything useful
and since SCO is responsible for all knowlege then everything created should pay
omage to SCO..Sounds like SCO is Claiming to be a software God and nothing is
original but for SCO giving the ability. Unbelievable!

[ Reply to This | # ]

SCO's math doesn't add up...
Authored by: gypsybones on Saturday, February 07 2004 @ 09:44 PM EST
Without even resorting to the actual sources, one would expect the relevant
number of lines to somewhat match...

Here, we're expected to believe that 69 lines of code are copied verbatim into
29(!!) lines of Linux code:
usr/include/lvmrec.h 24-92 include/linux/evms/evms_aix.h 266-294

There are a number of such mathematical discrepancies; but there is no need to
even resort to the sources for the last file mentioned:
kernel/i386/trap.c 2054 init/main.c 30-33, 09-616

IANAL; but just HOW does ONE line of code become TWELVE (4+8) CONSECUTIVE lines
of matching code???

Avoiding the code details which are outside her expertise; the judge need only
look at the obvious lack of credibility in the ranges of line numbers...

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Anonymous on Saturday, February 07 2004 @ 10:16 PM EST
A couple of timeline notes:

I worked on BSD Unix on 386 in 1988 for Interactive Systems (later bought by
Kodak).

In 1989 I worked on AT&T Sys5.3 Unix on Intel 386 for Banyan Systems (maker
of Vines)

Unix on 386 was stable and commercially available in 1988.

Philip Cameron

[ Reply to This | # ]

Small typo in para. 146
Authored by: Louis Guerin on Saturday, February 07 2004 @ 10:39 PM EST
OSDL referred to as PDSL. Not sure if it's in the original or not. From the
sentence:

"which include use for the benefit of the Open Source Development
Laboratory ("PSDL")"

Otherwise a sterling effort :)

L

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Anonymous on Saturday, February 07 2004 @ 10:55 PM EST
if i understand it correctly, SCO complaint here seems to be the
term "derivative work"
they think that if you licensed an a tomato from them and you
create a tomato holder to place tomatoes in. and later you wanted
to place apples in it it will be in violations of their contract. to me
derivative is tomato sauce is derivative of tomato. a tomato holder is
for tomatoes but not derivative of the tomato. does this make
sense?

Gio

[ Reply to This | # ]

Typeo
Authored by: rand on Saturday, February 07 2004 @ 11:14 PM EST
M UNIXWARE 3.1.7 TX 5-787-679 June 11, 2003
should be
M UNIXWARE 7.1.3 TX 5-787-679 June 11, 2003

---
The Wright brothers were not the first to fly an aircraft...they were the first
to LAND an aircraft. (IANAL and whatever)

[ Reply to This | # ]

Copyrights?
Authored by: ChrisP on Saturday, February 07 2004 @ 11:21 PM EST
The supplements of Soft 15, the AT&T IBM Software Agreement, show IBM
getting "UNIX* System V, Release 2.0 Version 1 and UNIX System V, Release
2.0 Version 1, International Edition**", "UNIX* Documenter's
Workbench** Software" and "370 DEVELOPMENT SYSTEM V".

Curiously, the copyright table in paragraph 176 mentions _none_ of these (but
does mention UNIX SYSTEM V RELEASE 3.2 twice, in the PDF as well as the
transcript).

I guess then that Novell is the indisputed owner of the SVR2 copyrights, and
SCOG has no claim over IBM for derivative works based on them, i.e. AIX. Case
dismissed! (Of course IBM could have later licenced subsequent SYSV
releases...)

So who owns copyrights on 370 DEVELOPMENT SYSTEM V?

---
SCO^WM$^WIBM^W dammit, no-one paid me to say this.

[ Reply to This | # ]

Where's the source?
Authored by: Anonymous on Saturday, February 07 2004 @ 11:26 PM EST

OK. I'm confused.

I see the listing of the files and the alleged lines that are supposed to be infringing but I don't even see those files on my system (RH8.0 + late -- but not the latest -- model 2.4 obtained from kernel.org).

Just what was SCO looking at?

[ Reply to This | # ]

No experience with Intel chips?
Authored by: Anonymous on Sunday, February 08 2004 @ 01:35 AM EST
54. At this point in time, IBM's UNIX expertise was centered on its own Power PC processor. IBM had little or no expertise on Intel processors.

I guess SCO forgot about who made the processor in the original PC, then the XT and AT. I imagine SCO also doesn't recall the fact that IBM (originally in concert with Microsoft) was wokring on OS/2 to replace PC-DOS. I don't know what improvements IBM may have made to PC-DOS after buying it from Microsoft.

Let's also not forget about the BIOS in the PC. Until Pheonix came out with a reverse enginered clone of the IBM PC BIOS, there was no clone market.

[ Reply to This | # ]

WOW!
Authored by: Anonymous on Sunday, February 08 2004 @ 01:35 AM EST
It's true folks....I'm an MCSE so I have no idea how to read any of this code
;-) *but*, what I *do* know is that Janet Jackson's wrinkley, sagging boob is
more important to the american public than this case. My point is, many of you
make claims from a technical standpoint that simply won't be understood by an
american public full of morons, MCSEs, and people who want Janet Jackson to rot.
You do realize of course that if this thing goes to a jury, it will be made up
of many of those same people who want to sue MTV, CBS, JJ, JTimberlake, and
Viacomm? That's scary. Very scary. If this gets to a Jury, we can all say
good bye to Linux. The judge MUST put an end to this tomfoolery now or we could
be looking at complete and total world domination by M$. I want to vomit,
this upsets me so.

PS, please be easy on me and my MCSE status...I made the
switch, and so I'm just now learning how computers really *should*
work....better late than never, right?

[ Reply to This | # ]

  • WOW! - Authored by: Anonymous on Sunday, February 08 2004 @ 05:00 AM EST
  • WOW! - Authored by: Anonymous on Sunday, February 08 2004 @ 06:12 AM EST
  • WOW! - Authored by: blacklight on Sunday, February 08 2004 @ 01:04 PM EST
SCO's Second Amended complaint
Authored by: brickviking on Sunday, February 08 2004 @ 02:40 AM EST
Rats! It's up already! Just as I'd got up to typing out paragraph 100 too.
*sigh*

What happened? We got some extra fast typists in here? Or just some really good
OCR software?

Regards - The Viking

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Anonymous on Sunday, February 08 2004 @ 03:47 AM EST
Ok. There are (a whole lot of) things that are a bit whacked. If IBM is doing
all the coordinating, what is with the Linux Kernel Mailing List (LKML)? It was
around long before IBM heard of Linux and it's the development forum. As for
software coordination, Bitkeeper does that (and CVS and RCS before that).
Bitkeeper is privately owned. IBM doesn't own it (and neither does SCO). JFS
is a journalling file system contributed (ported to Linux) by IBM. But it came
from OS/2, not AIX. There are *4 other* journalling file systems in Linux (XFS,
EXT3, Reiserfs and Reiser4). I havn't tried JFS, only ext3 and Reiserfs. While
it's true that IBM tried to contribute the Next Generation Threads Library
(NGTL) to Linux, development stopped in favor of the Native Posix Threads
Library (NPTL). Why no mention of BSD in their statements of claim? Why no
mention of the licence agreements allowing use of all legacy Unix code (issued
in 1999)? Why no mention of the AT&T vs UC Berkeley case (Unix system V vs
BSD Unix) where AT&T lost, Berkeley won, due to the evidence given, the
judge closed the case with prejidice . There is a long (and famous) discussion
between the creator of Minix and Linus Torvalds over the design of Linux. Why
no mention that Linux is (originally) a derivitive of Minix? Why does SCO fail
to mention that multiprocessor support was contributed to Linux by Alan Cox
before IBM heard of Linux? Linux was on 64 bit Alpha processors in 1996 (3
years before IBM started supporting Linux). Why did SCO fail to mention that?
When IBM started supporting Linux, there was already a (successful) project
where Linux was running on IBM mainframes (and as I seem to recall, Princeton
University was already doing so). IBM added their own support for Linux on
their mainframes. Why did SCO fail to mention that? SCO asserted that Linux
'hobbiests' couldn't design an operating system kernel. How different is the
training of Linux developers (Masters or PhD University degree in Computer
Science) different from the original Unix developers? Are there not to be any
OS courses taught in Universities? What about the POSIX standard (not a private
standard, but an IEEE and ISO9000 standard). Were the Linux developers supposed
to ignore these? There is a lot of functionality in Linux not found in any
Unix. Is SCO claiming they own all of it even though they don't have this
functionality in any of their products (and if so, how is it 'stolen' if they
don't even have it in their own products?).

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: TerryL on Sunday, February 08 2004 @ 09:07 AM EST
OK, so we now have
  1. SCOG v IBM - now about copyright (or contracts or...)
  2. IBM v SCOG conter suit
  3. RedHat v SCOG
  4. SCOG v Novell - about who owns the copyright

IF in (1) SCOG are allowed to amend their complaint AGAIN I suppose this will lead to a delay because (4) is where the ownership of the copyright will be sorted out? Or can the case go ahead, decide if there is POTENTIAL copyright infringement or not and then only go on hold for (4) if there is infringement found anyway?

Does case (2) have to wait for (1) or could that go ahead independently of any delays because of the (1)/(4) dependency?

Where does this leave (3) - what's happening with this anyway? Is it going to be held up because of anything that's changed?

---
All comment and ideas expressed are my own and do not necessarily reflect those of any other idiot...

[ Reply to This | # ]

SCO's lawyers cannot read
Authored by: RE on Sunday, February 08 2004 @ 10:19 AM EST
In item 121 they claim:

121. In recognition of SCO’s right of confidentiality of the Software Products, IBM directs all customers who need to view AIX source code to first obtain a “read only” source code license from SCO as a condition to viewing any part of AIX. For example, SCO received a letter on or about March 4, 2003 from Lockheed Martin Corporation requesting verification of the existence of a Software Agreement by and between Lockheed and SCO as a condition to Lockheed obtaining access to view AIX source code. The letter stated, in part, as follows:

LMATM is in the process of licensing [AIX] from IBM to be used for integration purposes only. Per the attached supplement to the subject document, contained within the AIX source code is third party IP which must be licensed from the owner prior to IBM providing the AIX source code to any licensee (see Prerequisite Source Licenses, Para.2.2). * * *

2.2 Prerequisite Source License. IBM cannot disclose (includes viewing) certain Third-Party Source Code to any party who does not have a license that permits access to the Code. Prior to receiving or accessing the Source Code described above in this Supplement, LMATM must obtain the following Source Code Licenses:

a) AT&T Technologies, Inc., AT&T Information Systems, Inc., or UNIX ™ Systems Laboratory Software Agreement No. SOFT---and AT&T Information Systems, Inc. Software Agreement Supplement for Software Product AT&T UNIX System V Release 4.0, or AT&T Information Systems, Inc. Schedule for Upgrades (from UNIX System V Release 3.1 to UNIX System V Release 3.2 or from UNIX System V Release 3.1 International Edition to UNIX System V Release 3.2 International Edition) or equivalent SCO Group License.

SO they claim that IBM requests their customers to obtain a license from SCO to see any part of IAX.

But when you read 2.2 you see that it only refers to Third party source code.

So when an IBM customer wants to see AIX code that is written, copyrighted and owned by IBM they don't need a licens from SCO of any other firm.

So this point is just plain rubbish and is only meant to hide the real allegations in all those other allegations. I think they just want to burry IBM in a pile of paper and hope they never come out. But IBM can process more paper than teh SCO lawyers can create so thess actions are stupid and ignorant.

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Anonymous on Sunday, February 08 2004 @ 10:46 AM EST
Out of curiousity, how did SCO gain access to the Dynix source?

[ Reply to This | # ]

Correct me if I'm wrong - Isn't this good news??
Authored by: Anonymous on Sunday, February 08 2004 @ 11:39 AM EST
By SCO dropping the trade secret claim, is not the Linux development community
free to re-engineer clean room versions of anything and everything that SCO
claims.

Is not true that now the future of Linux no longer being claimed by SCO, and
they are simply fighting over small parts of existing implimentation that can be
easily re-written.

While IBM still might have a problem with SCO's damages, the rest of us are free
and clear to move forward if these are simple copying claims.

(Note that the value of IBM's damage to SCO in this case is still limited, and
probably no more than $200 million at most for lost business. This is becuase
Linux would write these modules sooner or later for the future.)

-Anon

[ Reply to This | # ]

None of the claimed code exists in any standard kernel
Authored by: Anonymous on Sunday, February 08 2004 @ 12:09 PM EST
I compared the SCO claims to the Linux Cross Reference and found that none of the claimed code exists in the places given:

  • Table A: there is no include/linux/jfs/.
  • Table B: there is no include/linux/evms/.
  • Table C: the referenced files do not exist.
  • Table D: the referenced patches are not in the source. And if they were, the kernel wouldn't compile, because the Table C files don't exist.

These appear to be third-party patches; someone else referenced the Table C and D patch in this article.

None of that gets IBM off the hook, if the judge should swallow SCUM's ridiculous reading of derivative work. But this pile of Blake Stowell is a rather poor basis for suing end users.

C'mon, Darl, can't you do better than this?

[ Reply to This | # ]

If I were the judge…
Authored by: Anonymous on Sunday, February 08 2004 @ 03:51 PM EST
If I were the judge, I would be intimidated by the size, breadth, and timing of

this amended complaint. After all it was submitted right on the deadline. And
it is well written and logically constructed, unlike their previous filings with

this court. Yet, there are many propaganda statements peppered among the
legally relevant points. A strong case is usually stated succinctly in such
obviously well edited documents. It is not really as sound as it looks.

Is this document diverting attention away from other court concerns? As
examples…

The SCOG has usually failed to comply with this court’s orders in the past.
The whole course of the legal proceedings has been predicated on The
SCOG’s failures to comply.

The SCOG has made an ongoing public spectacle of their legal activities. The
SCOG’s public statements are often misleading the public and later
contradicted during their courtroom appearances. The SCOG is actively
shaking down all Linux users globally, and telling the SEC that they intend to
base their business on these activities.

The SCOG’s courtroom statements have been contradicted by their
subsequent legal submissions. Dropping the claim that IBM violated The
SCOG’s trade secrets, while using the claim of IBM violating The SCOG’s trade
secrets to rescind IBM’s UNIX licenses, while using the claim that IBM no
longer has a valid UNIX license so IBM is violating The SCOG’s copyrights in
UNIX is patently illogical. But that is the essence of The SCOG’s public
behavior. Previously, The SCOG told the court that this case was not about
Copyright but Patents and Trade Secrets, but now they submit the opposite.

The SCOG resists explaining their claims with specificity in all venues. They
add new, wilder claims whenever they are losing media attention. They tell
Congress that the GPL violates constitutional rights and could allow our
enemies to vanquish the U.S. But they tell Harvard and MIT students and
faculty that The SCOG supports the GPL and open source software.

Their document might form the last, best basis for nailing down The SCOG’s
legal claims and the legal nature of their case against IBM, if any exists at
all.
This is the time to whittle the amended complaint down to size and discover
its relevant claims. Eliminate propaganda, legal or technical definitions,
requests for court actions or compensation, etc.

If I were the judge, I would obtain one clean paper copy to mark up. I would
black out all sentences that are pure propaganda so they cannot distract the
reader. I would mark in yellow all definitions of terms, legal standings,
historical events, etc. so they cannot be mistaken for legal claims. I would
mark in red all requests for court action, including compensation. Finally, the

unmarked text would contain the information to weigh when considering the
amended complaint at the last moment, in spite of the fact this complaint
contradicts The SCOG’s statements and legally relevant actions up to the
filing date.

[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Anonymous on Sunday, February 08 2004 @ 03:56 PM EST
Yes nice read .. right now lets fry em folks SCOX is there
for the killing ..
pete.

[ Reply to This | # ]

background facts
Authored by: Anonymous on Sunday, February 08 2004 @ 06:51 PM EST
If the judge was not aware of the ownership history
of the original AT&T Unix system it would appear that
the current SCOG was involved in all the backround points
from 20 - 52.

How bizarre !!

[ Reply to This | # ]

  • background facts - Authored by: Anonymous on Sunday, February 08 2004 @ 09:57 PM EST
SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Anonymous on Sunday, February 08 2004 @ 07:57 PM EST
This reads like a bad schools history paper.
With
1. 25% being true: Parties involved.

2. 25% being false: Such as the Timeline of Intel CPU version of UNIX which
was 1988. Plus emvs was a part of MVS OS (pre-UNIX, created by IBM) modify to
fit AIX. So IBM has the right to do that ever it wants with MVS and emvs files.
Also, there is no law that states IBM can not have a work force of 120,000 while
others company only have 12,000.

3. 50% of SCO Group taking credit for other companis work: Such as taking
credit for AT&T, HP and Novell work. SCO Group is even taking credit for
the old SCO. Or claiming the IBM decision to alter it futures plans to move to
LINUX is illegal. Or saying that SCO Group has made UNIX grow, they have only
owned the OS for the last couple of years. Novell and the old SCO increased the
growth of UNIX (UNIXWARE).

But without some correcting the admendment the Judge might start to believe the
mistakes.

And where was McBride brother this time?


[ Reply to This | # ]

SCO's Second Amended Complaint, If the Judge Says Yes
Authored by: Anonymous on Sunday, February 08 2004 @ 08:39 PM EST
Just anger boiling out, for entertainment purposes only, as they say, my
deconstruction of this:

http://mysite.verizon.net/vze4v38p/deconA2.html

[ Reply to This | # ]

Who actually wrote this?
Authored by: Anonymous on Sunday, February 08 2004 @ 08:50 PM EST
In reading this, I have to wonder who actually wrote it. It bears little to no
stylistic semblance to any of the previous legal documentation produced by SCO.
It seems to have been authored by a completely different group of lawyers who
are much craftier and experienced in obfuscation and confusion.

It's almost as if someone told the SCO lawyers, "Look, you don't know what
you're doing. Step aside and let us write the complaint for you."

Isn't there a legal principle that if one corporation is completely directing
the activities of a second corporation, then the controlling corporation can be
held liable for the activities of the controlled corporation, even in the
absence of a direct link of ownership?

If it could be demonstrated that the complaint had actually been written by
Microsoft lawyers, then would this fact, in conjunction with the fact that SCO
is now being primarily funded by "license payments" from Microsoft,
provided a basis for IBM filing a motion to add Microsoft as a defendant in the
countersuit?

[ Reply to This | # ]

SCO's Second Amended Complaint: Evaluation
Authored by: Hyrion on Sunday, February 08 2004 @ 09:46 PM EST

Well after 6 hours of careful reading I've come to a conclusion. This is little different from the original. Keep in mind, IANAL, not even close. This is just from a laypersons point of view.

From what I can see, the overview is fairly straight forward. The complaint is that IBM breached their contractual obligations. There are two key points:

  1. IBM misused code and/or methods they were not supposed to.
  2. IBM has been engaging in unfair competition to destroy the value of UNIX.

Unfair Competition

Let's start with point 2. Unfair competition. SCOs specifics for unfair competition seems to be based on mainly the misuse of the product. Without the misuse of the product, they are left with:

  • Use of deceptive means and practices. Point F under Sixth cause of action.
  • and
  • Other methods of unfair competition. Point G under Sixth cause of action.
  • The first five items all seem to deal with either the misuse of the product or breach of contract, which as identified above, is linked into misuse of the product. That pretty much leaves us back with 1. Another example is point 58. It indicates that it's a no-no for IBM to use the product on a competitive product. Again, a misuse of the licensed product. Even the indication that IBM has enticed others to misuse the licensed product brings us back to misuse.

    Misused Product

    In many places they claim that IBM has inappropriately taken UNIX protected code and placed that in Linux. Points 84 through to 109 for example is highly focused on that. Prior to 84, there's various claims interspersed with other ... "facts". Some of the facts are accurate others are ... not so accurate.

    My impression after reading that far is that misappropriation is the key issue in revoking IBMs license. That of course, leads to issue 2. Unfair practices. That revoking of the license also leads us to the recent copyright charge, however for my discussion I'll leave that out.

    Misused Code Specifics

    SCO has given indication that IBM has taken code from Project Monterey and embeded it within AIX. Then when IBM made the claims that they have integrated parts of AIX into Linux SCO concludes that code from Project Monterey ended up being part of that.

    Any other specifics SCO has identified all seem to be based on code wholly developed by IBM. SCOs claims seem to be that IBM was trusted to treat any code they develop as part of the original UNIX Sys V. Here we go back to the derivative works arguments.

    Part of where SCO got their conclusion from is identified in points 82 and 83. Basically they don't understand how Linux could mature so rapidly without foul play being involved. Of course they don't identify facts such as no marketing pressure on the developers so they can focus on what they believe is important. Point 83 is a little confusing. Are they saying: Based on the conclusion in point 82:

  • Linux is a clone of UNIX with code and methods from Unix Sys V. and derivatives
  • or
  • Linux is a clone of:
    1. UNIX code and methods
    2. Unix Sys V code and methods
    3. Unix derivative code and methods
  • Kinda like the first one Linux contains the code whereas the second one Linux is only a clone of all the code.

    Other Points of Contention I've Found
    1. The term UNIX. I've found four possible deffinitions for UNIX in the context they use the term.
      1. UNIX Sys V.
      2. Including derivatives that were built with UNIX Sys V.
      3. Including anything that was written to run with UNIX Sys V.
      4. Operating systems built around the industry standards and Single Unix Specification
      It seems they don't want to clearly define what they mean when they use the term UNIX.
    2. The term clone. I've found two possible deffinitions for clone in the context SCO uses.
      1. The GM pickup is a clone of the Ford Pickup. They both use gas. Both have internal combustion engines. Etc. In other words, they are very similar and based on the same industry standards.
      2. The remake of Movie X is a clone of the original Movie X. In other words, potential copyright licensing etc. involved.

      If SCO wants to identify Linux as a clone, is it more like the pickup?

    3. The term SCO. Again they seem to not want to be clear on whether they refer to old-Sco/Santa Cruz Operations and new-Sco/Caldera. They do appear to strongly want to treat the two organizations as a single entity.
    4. The rights of ownership involved. At least this time they sort of identify contention with Novel over the rights. It's deffinitly something that will likely be settled by a court of law.
    5. They've used the term flavor in a couple of places. I can think of two deffinitions and they are similar to the deffinition of the clone.

    Well, that about sums up my findings as I read SCOs amended complaint. That puts us back to the specific code that IBM misused. Let me know if I'm correct. If so, the Judge is not going to be happy with that. Although, now that I think of it. If it really is no different she may not allow the amended complaint as it simply appears to be wording changes.

    Let me know how close I hit the mark with how others have interpreted it.

    ---
    There are many kinds of dreams. All can be reached if a person chooses. - RS

    [ Reply to This | # ]

    OT?: Tying Unix to x86 is immaterial
    Authored by: swengr on Monday, February 09 2004 @ 04:56 AM EST
    Ahem...

    One of the unique aspects of Unix, as originally created for the
    "spare" computer at AT&T, was that it was written for the most
    part in C, a "high level language". Only a miniscule amount was
    written in processor-specific assembly language.

    This distinction made it far more portable than other contemporary operating
    systems, and is what allowed it to be easily ported to, e.g. the various DEC
    TOPS-10 and 20 computers, Data General computers, et al.

    To claim that SCO (any incarnation thereof) had some special expertise required
    to port Unix to the x86 family is not only bogus and disingenuous, but... such
    special expertise is not required.


    ---
    Gratis is nice, Libre is an inalienable right.

    [ Reply to This | # ]

    SCO's Second Amended Complaint, If the Judge Says Yes
    Authored by: Anonymous on Monday, February 09 2004 @ 09:11 AM EST
    Folks maybe someone could gimme some help here. I made the followign
    observations, but I've got a couple questions inline. I noticed the following
    in the latest from our favorite "Darl"ings:

    1) Lots of revisionist history. Like somehow the whole history of U*** on ix86
    is rooted in SCO. I think not. Might wanna look at BSD. And while they're at
    it might wanna look at why BSD seems to be skating around these minefields?
    Also It seems to me that much of this complaint is moot anyhow if Novell owns
    the IP, so I would say that that case pre-empts this one.

    2) It seems like at the root of 90% of the complaint that SCO has is the old
    'derivative works' bull crap. That somehow if anyone has EVER seen source code
    from SVID that somehow their ability to generate ANY unique IP surrounding ANY
    U*** derivative is forever gone. I don't know that this premise was ever tested
    to the degree that even AT&T claimed it was true???? Lawyers... please
    comment on precendent here? As a judge I would be very circumspect that SCO
    PROVE that somehow derivative works had some DIRECT and COMPELLING relationship
    to the old SVID crap (which never did scale).

    3) Whatever remains seems to be contracts stuff and IMHO it appears that there
    are a LOT of questions about whose contract applied (to the IP in question) in
    what timeframe. I really would like to understand how much of the supposed
    breach happened prior to the filing which could have caused them to be at
    loggerheads at this point. As a judge I think I would tend to place great
    weight on actions which may be in violation prior to the suit, and much less on
    anything after. Any Comments?

    4) What are thre chances that a lot of this run up is to ensure the maximum
    amount of delay??? Maximizes fee in any case? Also kind of gives the SCO team
    plenty of opportunity to find spurious stuff like .h files which form IP. I
    think this claim is specious at best. Assuming there SCO had valid IP
    complaints in the mechnisms of SMP, filesystem implementation, scheduling,
    kernel locking, etc.... As a judge I would demand they MUST have something more
    specific and compelling than claiming that the structure of data, and it's
    definition (a .h file) is a copyrighted work. The analog would be to claim that
    the sentence structure (Noun then verb) for putting words together in a book is
    copyrightable?

    Yeah this latest is full of it, but at leat it gives the best window thus far
    into the twisted logic of the idiots. I hope they drown in their own
    litigation. And anyone in that hires any of the directors of SCO (or their
    stinking lawyers) for anything more than a janitor should be tarred and
    feathered.

    Ciao,

    mdw ;-)

    [ Reply to This | # ]

    What would it take for SCO to win this case?
    Authored by: mjscud on Monday, February 09 2004 @ 01:09 PM EST
    If there is still an SCO strategy to win this case, I think it goes like this:

    1. Get this to a jury, and present it as SCO = David (righteous underdog hero) versus IBM = Goliath (big evil bully).

    2. IBM signed a viral (they wouldn't use that word) contract that gives SCO almost complete rights to any code which forms any part of a modification of Unix by IBM (note that this argument doesn depend on the definition of the word derivative). Presumably they did this because they so badly wanted to be able to use SCO's wonderful Unix. Note what the SCO complaint emphasizes:

    [A] personal, nontransferable and nonexclusive right to use in the United States each Software Product identified in the one or more Supplements hereto, solely for Licensee’s own internal business purposes and solely on or in conjunction with Designated CPUs for such Software Product. Such right to use includes the right to modify such Software Product and to prepare derivative works based on such Software product, provided the resulting materials are treated hereunder as part of the original Software Product. [Emphasis added.]
    3. This donated (treated hereunder as part of the original Software Product means donated to SCO) code includes JFS and RCU, etc. Once IBM modified Unix to include these, IBM thereby donated them to SCO and retained only the right to use them for internal IBM business purposes.

    4. IBM is maliciously trying to ruin SCO by including this code, developed by IBM but donated to SCO under the terms of this contract, into Linux.

    5. Contributing code under the GPL is equivalent legally to making the code public domain. Yes, SCO did this by mistake, and has lost rights to earlier distributions of Linux; but they are not responsible for IBMs adding JFL, RCU, etc. to Linux, and therefore SCO owns JFL, RCU, etc., and anyone using Linux owes SCO for this improper use of their IP.


    Is there any chance of this argument getting to a jury? Can you imagine a jury accepting this argument?

    Please, recognize I don't think this argument holds water. I just want some assurance it won't get accepted.


    ---
    Even a fool, when he keeps silent, is considered wise. Proverbs 17:28

    [ Reply to This | # ]

    GPL trumps them again?
    Authored by: Anonymous on Tuesday, February 10 2004 @ 09:21 AM EST
    They seem to be basing their argument for copyright infringement on 2.4.1 +
    the 2.4.1-01.patch that introduces all of IBM's contributions mentioned in their
    complaint.

    But if this produces the 2.4.1-01 source that Caldera used, and presumably
    distributed off their website under the GPL, aren't they in the position where
    they released the sources even if they claim to own IBM's work? It sounds to me
    that Linus' comment that "they are wrong even if they were right"
    exactly describes the situation.

    The question is whether they are still distributing the sources modified
    by the IBM elements patch, or this has just happended to drop off the website
    during the outages.

    [ Reply to This | # ]

    Desktop vs. Workstation
    Authored by: Anonymous on Friday, February 13 2004 @ 12:14 AM EST

    33. The RISC processing platform provides high-power computing capabilities at a relatively higher price for “workstation” computing. The alternative to “workstation” computing is commonly known as “desktop” computing on personal computers. The operating system market for “desktop” personal computers is dominated by Microsoft Corporation and its various Windows-based operating system products. The reason for this distinction is that most desktop computers (PC’s) are designed to operate on Intel and Intel-compatible computing platforms. Most workstations are designed to operate on variants of RISC processing platforms and RISC-compatible computing platforms. PC systems and RISC systems are not hardware compatible with each other. Thus, most versions of UNIX will not operate on Intel-based PC’s for desktop computing; and Windows will not operate on RISC-based workstations for enterprise computing.

    As I recall, Windows NT 3.1 or 3.51 was available on MIPS and PPC.  This would have been around 1993 or 1994.  Windows NT was available on the DEC Alpha chip for longer.  I used to have the CDs in my copy of the MSDN distribution.  Windows did operate on pure RISC platforms.

    We were building crude render-farms on DOS in 1988 on Intel 80286s.  AutoCAD had a 3D studio product soon after which networked Intel "workstations" based on the 386.  These crude clusters weren't running business applications, but they were running personal workstation software.

    As for Unix "flavors" on Intel, we've got Solaris on Intel today and bank in the late 80's we had the Sun 386i PC which ran SunOS on an 80306 or i486.  See: http://msowww.anu.edu.au/~kim/faq /part1

    [ Reply to This | # ]

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