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A Lyons' Tale: SCO's New Claim and a History Lesson for Them
Thursday, August 05 2004 @ 07:05 PM EDT

I'm sure you have all read about SCO's new claim in -- where else? -- Forbes.

I hope you don't reward them with clicks, but if you are determined, here is the address: http://www.forbes.com/business/2004/08/04/cz_dl_0804sco.html

Here's the meat of the charge:

  • that IBM "lacks proper licenses" for AIX since 2001 and that they have found internal IBM emails acknowledging such in their discovery.
  • SCO and IBM, the new story goes, got together in 1998 to do Project Monterey to create a Unix OS for 64-bit Intel, and SCO gave IBM the right to use System V Release 4, but "only on Intel-based microprocessors, and only if IBM stuck to the partnership."
  • IBM disobeyed and built a version of AIX, AIX 5L, which they released in 2001, after Project Monterey failed, that runs on PowerPC. "McBride says IBM ignored that restriction and used SVR4 to build a version of AIX--AIX 5L, released in 2001--that runs on IBM's proprietary PowerPC microprocessor."
  • Up until then, according to SCO, IBM used only System V Release 3.

On the basis of this great and sudden discovery they may file a new complaint or amend the current one. So they say. As usual with Forbes, some details are inaccurate, but I'll focus just on one thing for now, the new claim.

If I may take you with me back in time a bit. Let's take another look at an article that Groklaw published in July of 2003, when SCO was fresh and new and so was I, which will demonstrate that SCO knew perfectly well back in 2001, after Project Monterey died, that IBM had System V Release 4 code in AIX 5L, knew it worked on Power, and that they had no objection. In fact, it appears they donated it to AIX 5L. By the way, SVR4 had a good deal of 4.3BSD code in it. Wasn't SVR4 the first AT&T Unix version to contain substantial parts of 4.3BSD, which AT&T was using under license from Berkeley? Anybody want to bet that the SVR4 code turns out to be Berkeley code? In any case, as you will see, SCO had on its web site a page praising AIX 5L, and the text indicates to me that any SVR4 code in it was donated by SCO itself. Of course, newSCO, son of Caldera, wasn't there, so they don't remember that part maybe.

The article said I marked relevant text in bold, but since we are now looking for a new point, I haven't duplicated that, but you can see it on the original page, if you wish. Here, instead, I have marked crucial points in red. Here's most of the July 2003 article, "Gadzooks! Look What I Just Found", marked off between rows of stars:

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

"Talk about your laches and waiver, with a dollop of estoppel thrown in, not to mention a deepening plot.

"Here, ladies and gentlemen, are, first, relevant snips from a SCO web page dating back to just after Project Monterey days, the IBM-Santa Cruz-Sequent project IBM killed in 2000. The SCO page has a copyright of 2001 and it's talking about AIX-5L, which was the successor to AIX, Project Monterey, from what I can gather from the two documents I just found. The second document is a news article from 2000 announcing the death of Project Monterey. Put the two together and a lot of things get clearer. I have made the most significant parts bold text, including references to IA-64, NUMA, Linux, and incorporatiing SCO Unixware and System V into AIX:

'AIX 5L - The Next Generation of AIX

'The next generation of AIX--AIX 5L--takes AIX to the next level with advanced technology, a strong Linux affinity and added support for IBM's Power and Intel's future IA-64 processor-based platforms, making it the most open UNIX operating system in the industry. AIX 5L demonstrates the success of the Project Monterey initiative, incorporating technology from the world's leading software and hardware providers, giving customers the business flexibility and performance they need for e-business. . . .

'AIX technology will help contribute to the success of the future systems running AIX 5L on Power and IA-64. . . .

'IBM has worked with a number of companies to provide best of breed technology for AIX 5L. Industry contributions include key technologies from IBM DYNIX/ptx, multi-path I/O and NUMA, and from SCO UnixWare and UNIX System 5 standard technologies. Bull continues to contribute development expertise in areas such as scalability and workload management.

'All of these efforts are paying off. Soon customers will be able to take advantage of the added benefits of AIX 5L. AIX 5L In addition to CPU and memory, AIX 5L Version 5.0 will offer an improved Workload Manager (WLM) with the ability to manage disk I/O, a capability not offered in Sun Solaris. This will help enable IT managers to give priority to Web-serving applications and resources, while making unused capacity available for other Web-serving tasks. AIX 5L will also offer Java 2 Version 1.3 support with expected availability ahead of Solaris. TCP/IP enhancements, offering improved network performance and reliability, will also be included. Among the UNIX System 5 technologies to be incorporated in this release is the SVR4 printing subsystem providing industry-standard print administration and drivers.

'Customers Will Benefit from Linux Affinity

'IBM is working to provide strong Linux affinity with AIX 5L. This will enable faster and less costly deployment of multi-platform, integrated solutions across AIX and Linux platforms. Many applications developed on and for Linux can run on AIX 5L with a simple recompilation of the source code, allowing customers to combine Linux applications with the advanced scalability and availability features of AIX. This Linux affinity in AIX enhances the customer's ability to adapt to changes in their business and technology.

'Linux affinity on AIX includes Linux application source compatibility, compliance with emerging Linux standards, and a GNU/Linux build-time environment with tools and utilities that combine to facilitate the development and deployment of Linux applications on AIX 5L. Linux affininty also includes AIX/Linux interoperability verification and will benefit customers looking to use Linux for front-end Web serving and AIX 5L for transaction and data management.

'Software, Hardware Providers Working with AIX 5L Beta Code

'Software providers are building applications with the current beta release of AIX 5L for the future Intel IA-64 platform. Tool and middleware providers, including Cygnus Solutions, EPC, Geodesic, IBM, Merant, Parasoft and Roguewave, are working with preproduction systems to create tools and middleware to build applications. Other software providers are using these tools to build solutions that range from e-business and supply chain management to enterprise resource planning and business intelligence. Hardware providers, including Unisys and Bull, are working with AIX 5L beta code on IA-64 to ensure that the operating system runs properly on their systems. Bull recently announced it has successfully run AIX 5L on IA-64 on an eight-way Intel Itanium processor-based server, achieving an industry first.

'AIX 5L, the next generation of AIX, will continue to offer customers an industrial strength operating environment, with Linux affinity, providing choice and flexibility for customers' needs while leveraging current investments.'

"No wonder they took it down.... this document from SCO's own web site, says they were donating code to AIX 5L. This SCO page is currently available here. It used to be here. But SCO has removed the page. I found a link to it (now a dead link) in a comment someone posted back in August of 2000 on a ZDNet story (which is itself only available as Google cache) about IBM killing Project Monterey, dated August 28, 2000, so at least on that date, SCO had this page up.[UPDATE: We found it on Google groups. See footnote below for details.] Here are some snips from the ZDNet page:

'IBM is killing off Project Monterey, a joint venture with The Santa Cruz Operation, while giving birth to a new OS. AIX 5L, a future Unix OS able to run on both Intel IA-64 and IBM's own Power chip, will integrate Linux alongside some of the technologies from Monterey.

'"At the same time, though, we're also focusing Linux on a brand new market of people who might not know anything about AIX," said Scott Handy, IBM's director for Linux solutions marketing, during a technical session at this week's Solutions 2000 developers' conference in Las Vegas.

'IBM's multifaceted moves to Linux go a long way toward opening up the company's commercial code base. . . . Now, under the upcoming AIX 5L, IBM will integrate AIX with Linux to create a common operating environment with shared systems management, along with high-end technologies that were supposed to be included in Project Monterey.

'In 5L, IBM is building "strong affinity with Linux" combining Linux source-code compatibility, a Linux build-time, and an AIX enterprise environment for running Linux applications, said Miles Barel, IBM's program director for Unix marketing, also at the conference in Las Vegas.'

"So... after this August of 2000 story announcing IBM was killing Project Monterey and giving us the name of its AIX successor, 5L, SCO had on its web site a page extolling the virtues of AIX 5L and its openness, and its "Linux affinity", as late as 2001. So they knew. . . . And they knew IBM was doing this back when it happened, because they all did it together as Project Monterey, and then from this web page, it appears SCO approved of and supported Project Monterey's successor AIX 5L also. They even donated code from UnixWare and System V. I'm not a UNIX expert, so if anyone sees anything here that I'm not seeing, speak up. But if SCO donated code to AIX 5L and IBM put in some Linux code and Sequent donated some, how can anybody sue anybody in this picture, when the evidence indicates everyone involved was deliberately trying to create an 'open environment'? It even mentions the GPL."

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

As you can see, the second article from 2000 mentions the death of Project Monterey and that the next AIX would be AIX 5L. And then, *after* that, we find SCO displaying on its own web site a page mentioning AIX 5L in glowing terms, including telling about its own contributions to AIX 5L, not to Project Monterey, and also mentioning that AIX 5L worked on Power and that it included System V Release 4 code. It also demonstrates that whatever the emails might say, and of course we can't speak to that since SCO hasn't shown them to anybody in public, SCO can't really say that IBM was allowed to use System V Release 4 code only if they stayed in the Project Monterey deal. Well, this is SCO. They can say whatever they wish. But the assertion and this evidence conflict.

And now, in 2004, SCO is shocked, shocked to discover that System V Release 4 code was used in AIX 5L. Puh-lease.

And by the way, the links that used to work are now dead. You can still find the beginning of the second article on LinuxToday. What does that mean? It might mean somebody asked Wayback Archive to remove the page. I have written to them to inquire. I don't know if that is why it is no longer available, but if it is, then that would indicate that SCO not only knew about the AIX business back in 2001, they knew about it when the page was requested to be removed on whatever date that happened, if it did. We'll be writing more about this silly new claim eventually. Meanwhile, I believe this material might help SCO not to waste its money paying its lawyers to come up with more empty claims.

As for Forbes, I think Mr. Lyons needs to take a class in research. Also somebody hand him a hokum detector, will you? I'm tired of trying to straighten out his messes. Another difficulty he has is that he's not a tech guy. He's never tried GNU/Linux. Last winter, when he interviewed me for the first hatchet job, speaking of live and learn, I offered to send him Knoppix, but he declined, telling me that he wasn't interested in computers and he didn't think he needed to know technical things to write about them as a journalist. I believe time has disproven his theory.

Oh, I'm being told the stock just happened to leap for a while after the Forbes article on SCO. Again? Didn't that happen last time? I need to check into that. Of course, life is full of strange coincidences. . . like SCO giving this vaporware story only to Forbes. Or were they just the only one to print it hook, line and sinker?

[to be continued]

UPDATE: 1:40 AM

The Groklaw gang found some great additional material, so don't miss the comments today on this story. Here's one outstanding contribution by rand, a Caldera newsletter from May 15, 2001 announcing that it was SCO and Caldera who "jointly released a technology preview of AIX 5L":

"SCO and Caldera have jointly released a technology preview of AIX(R) 5L; a 64-bit UNIX operating system for Intel(R) Itanium(TM) Processors

"The commercial 64 bit UNIX operating system for Intel(r) Itanium processors has been released as a technology preview. AIX 5L is the result of Project Monterey, a cooperative effort between SCO and IBM, to develop the next generation UNIX operating system for Intel Itanium processors. AIX 5L enables ISVs and customers to address a range of environments from workgroup servers to the largest data center servers using a single source tree, simply by recompiling. With its Linux affinity, AIX 5L offers a flexible environment enabling Linux applications to run on AIX 5L. This includes everything from Web server applications to 24 X 7 mission-critical enterprise applications."

And here's an article dated April 23, 2001 in Internet Week:

"IBM also introduced AIX5L, its next Unix version, which runs Linux applications with a simple recompilation. The new OS includes management features, such as an addition to Work Load Manager to allow external applications to manage system behavior, allocating more systems resources to high-priority applications. The software also has built-in accounting tools to track resource usage, and cluster management tools. AIX5L runs on IBM's Unix systems based on the Power processor, including the new p620 and p660. The software will be available May 4, included at no additional cost with new servers, and priced at $325 per processor for upgrades.

"Caldera and SCO introduced a preview release of AIX 5L for Intel Itanium processors, the result of Project Monterey, a cooperative effort between IBM and SCO"

And inode_buddha found this proof that Scott Allen, SCO's then-Monterey product manager, knew very well what was going on and he "had no problem" with it. The article, dated September 12, 2000, lists the following as being put into AIX 5L by SCO: "[T]he new AIX is incorporating two UnixWare features -- the /proc file system and the System V printing system." The web page referenced above tells us: "Among the UNIX System 5 technologies to be incorporated in this release is the SVR4 printing subsystem providing industry-standard print administration and drivers." SCO's contribution seems be have been quite small, but whatever the quantity, the evidence is that it was a contribution, and to AIX 5L.


Footnote: Details from the article on ZDNet in 2000 by Jacqueline Emigh:

"Noted Barel: "'With AIX RL, Project Monterey effectively goes away.' IBM previously teamed with SCO on Project Monterey. Recently, however, Linux distributor Caldera announced its intentions to acquire SCOs Server Software and Professional Services divisions.

"Under a road map handed out this week during Solutions 2000, version 5.0 of AIX RL will provide a 64-bit kernel and device drivers; Java 2 version 1.3 in base; an enhanced JF32 file system; SVR4 technologies; and improvements to TCP/IP and the Workload Manager.

"Barel maintained that AIX RL will be the first OS to incorporate Java 2 version 1.3, ahead of Sun's own Solaris.

"Other sources at IBM said the enhancements to Workload Manager will include the ability to manage disk I/O.

"The next release of AIX RL, 5.1, will add the Linux operating environment (LOE); a multiserver Web-based system manager; NUMA system enabling and tuning; RS6K Power4 enabling with LPAR; and SecureWay LDAP 3.2 with Kerberos5, also under IBMs road map.

"Further down the line, AIX RL version 5.2 will include NUMA and SMP performance tuning; dynamic partitioning support; NUMA and SMP performance tuning; and systems management and RAS enhancements.

"IBM has targeted the fourth quarter of this year for release of the final version of AIX 5L version 5.0; spring of 2001 for AIX 5L version 5.1; and the first half of 2002 for version 5.2.The final version of 5.0 is slated to run in both Power and IA-64 environments. For the third quarter of this year, IBM is planning an early adopters release of 5.0 on Power, plus a developers release on IA-64, according to Barel."


  


A Lyons' Tale: SCO's New Claim and a History Lesson for Them | 374 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: caliboss on Thursday, August 05 2004 @ 07:17 PM EDT
So PJ can find them fast...

---
Grok the Law / Rock the World

[ Reply to This | # ]

A Lyons' Tale: SCO's New Claim and a History Lesson for Them
Authored by: entre on Thursday, August 05 2004 @ 07:21 PM EDT
Forbes has been to often wrong for this to be an accident.

[ Reply to This | # ]

Sanctions for SCO
Authored by: _Arthur on Thursday, August 05 2004 @ 07:28 PM EDT
Isn't there a penalty for a party that discloses confidential materials obtained

under a discovery seal ?

If IBM leaked some SCO's Email content, there would be a firestorm of
protests.

And now, SCO casually mentions to a reporter the alleged content of
documents obtained in discovery, before SCO raises this issue in court ??

Move for SCO to be dippped in tar, then covered in feathers, then ran off Utha
over a railpost!

_Arthur

[ Reply to This | # ]

A Lyons' Tale: SCO's New Claim and a History Lesson for Them
Authored by: Anonymous on Thursday, August 05 2004 @ 07:28 PM EDT
"Contributions" does not imply that there were or were not copyrights
involved or even WHAT code got into what. The word has broad meaning, it means
the firms could have contributed anything from knowledge to actual code. What I
see being quoted is Marketing material in which a firm can take liberties. What
we need is a copy of the Project agreements which hopefully will state what
happened to the work when the project was dissolved. Who got what from whom and
what rights. Otherwise aren't we just shooting in the dark? Not that I believe
for a minute SCO is right, but let's not go off without more proof. Usually
GrokLaw has SCO dead centered in the sights, I'm not so sure this time.

[ Reply to This | # ]

SCOforum's Groklaw obession
Authored by: Anonymous on Thursday, August 05 2004 @ 07:30 PM EDT
Is it no wonder Groklaw featured so prominently with Darl and friends? Their
"smoking gun" is debunked within a day. Beautiful!

[ Reply to This | # ]

Offtopic here.
Authored by: Anonymous on Thursday, August 05 2004 @ 07:33 PM EDT
..breaking my "^.." rule. ;-)

[ Reply to This | # ]

Not for court.....
Authored by: Anonymous on Thursday, August 05 2004 @ 07:33 PM EDT
I'm with you PJ, I don't think the was ever intended to be presented in court.
One of these days Forbes is going to have to explain Mr. Lyons. It should be
interesting.

[ Reply to This | # ]

Trolls post here.
Authored by: Anonymous on Thursday, August 05 2004 @ 07:35 PM EDT
..breaking my "^.." rule again. ;-)

[ Reply to This | # ]

  • TROOLL - Authored by: archonix on Friday, August 06 2004 @ 05:55 AM EDT
A Lyons' Tale: SCO's New Claim and a History Lesson for Them
Authored by: Mark_Edwards on Thursday, August 05 2004 @ 07:36 PM EDT
ahhh.. What an entertaining story PJ.

Keep up the excellent work :)

Mark.

[ Reply to This | # ]

I just can't help thinking .....
Authored by: Anonymous on Thursday, August 05 2004 @ 07:37 PM EDT
.... that I cannot wait for the day that SCO is taken out the back by IBM & humanely destroyed, for the good of geeks worldwide. I say humanely, because I'd hate to see years of appeals over this. 'Oh happy, happy days......' Ian

[ Reply to This | # ]

A Lyons' Tale: SCO's New Claim and a History Lesson for Them
Authored by: Anonymous on Thursday, August 05 2004 @ 07:37 PM EDT
The article at http://web.archive.org/web/20011006104536/http://www.sco.com/monterey/aix 5l.htm appears to have been removed from the Wayback Machine's archive. Let the conspiracy theories begin.

[ Reply to This | # ]

A Lyons' Tale: SCO's New Claim and a History Lesson for Them
Authored by: IrisScan on Thursday, August 05 2004 @ 07:46 PM EDT
SCO's biggest problem is that they do very badly what Groklaw does very well ;
research . They often blurt out things that should have remained unsaid . A
sudden flush of triumphant excitement and yet another fine pair of shoes ends up
with a jagged hole in it .
Having said that there is a certain logic to shooting yourself in the foot while
you've got your foot in your mouth ; it's a great deal easier to deliver the
coup de grace and shoot yourself squarely in the head .

[ Reply to This | # ]

"21,000 Lines of Code"
Authored by: JeR on Thursday, August 05 2004 @ 07:49 PM EDT

In the April 19, 2004 Letter from Brent O. Hatch to Todd Shaughnessy (PDF), as submitted to the court by IBM, in the third paragraph from the top (¶2), Mr. Hatch wrote:

"2. SCO, based on the information currently available, has identified all specific lines of code that it can currently identify that IBM contributed to Linux from AIX and Dynix/ptx. In addition to the information previously provided in SCO’s supplemental answers o interrogatories, SCO has identified additional lines of code in Exhibits B and C. In compliance with the Court’s order, these lists are lines or files of code that SCO can identify at this time. These new files represent over 21,000 lines of code. However, based upon the fact that IBM produced the source code in a different format than requested (indeed, in a different format than either side had previously produced source code), SCO was able to begin its review of the limited source code provided only recently and therefore is continuing to identify specific lines and expects to find additional files and lines of code, as contemplated by the Court’s Order." [emph. added]

In SCO Forum Focuses on Litigation, Products, Linux Insider writes on August 5, 2004:

At the conference, McBride made the assertion again that it is IBM that is not following proper discovery procedures, and that despite Big Blue's reluctance to release everything, SCO has identified 21,000 lines of SCO code from the few versions of AIX and Dynix that have been shared. [emph. added]

VNUNet corroborates that Mr. McBride actually said this, as written in No regrets - and we'll win, says SCO's McBride on August 3, 2004:

From the versions of AIX and Dynix that SCO has received from IBM so far as part of the court case, McBride said that SCO had identified 21,000 lines of code that IBM had allegedly contributed to Linux. [emph. added]

Can we now assume that SCO, despite the efforts its legal counsel promised to put in, has not found no more infringing code in Linux and from AIX and Dynix/ptx since April 19, 2004? I have this little problem with counting time units, so correct me if I am wrong: Has SCO not found any more allegedly infringing code in the three and a half months since Hatch's letter? And should we really believe that "[SCO] is continuing to identify specific lines and expects to find additional files and lines of code" (Hatch's letter, ¶2?

---

[ Reply to This | # ]

1984
Authored by: Anonymous on Thursday, August 05 2004 @ 07:53 PM EDT
This is starting to sound like 1984.

The truth is whatever it is edited to be.

R.

[ Reply to This | # ]

SCO's New Claim and Project Monterey
Authored by: rsteinmetz70112 on Thursday, August 05 2004 @ 07:58 PM EDT
I just reread the Project Monterey agreement. I think it gives IBM sweeping rights to UNIX and does not have the specific confidentiality agreement in it the old ATT agreement had. I think it could be read as superseding the original license, granting IBM things they never had before, including a SysV r4 license and it contains a few interesting nuggets like this one;

Subject to the terms, conditions, and licenses of the Agreement, the owning party shall be free in all respects to exercise or dispose of any or all of its ownership rights in such portions of the Licensed Materials or Project Work, without accounting to the other party.

It has this to say about confidentiality;

Except as expressly set forth in the Section entitled "Public Disclosure", neither Party has an obligation of confidentiality under this Agreement,

I posted this under another thread but it is more appropriate here.

---
Rsteinmetz

"I could be wrong now, but I don't think so."

[ Reply to This | # ]

A Lyons' Tale: SCO's New Claim and a History Lesson for Them
Authored by: rand on Thursday, August 05 2004 @ 08:02 PM EDT
There's still the matter of Darl claiming they will add new pleadings or file a
new suit based on material found during discovery. That's the very definition
of "fishing expedition", and I for one don't think Their Honors are
going to put up with it for a moment.

I can see only limited choices here: either DM is a fool, ignorant, misinformed,
or deliberately attempting to manipulate stock prices.

---
carpe ductum -- "Grab the tape" (IANAL and so forth and so on)

[ Reply to This | # ]

A Lyons' Tale: SCO's New Claim and a History Lesson for Them
Authored by: Anonymous on Thursday, August 05 2004 @ 08:06 PM EDT
http://www.groklaw.net/article.php?story=2004030711323697&query=monterey

IBM has all the rights under the monterry aggreement and get's to keep all
licesnses granted!

15.4 Effect on Rights

(a) Termination or expiration of this Agreement or of a Project
Supplement by either party shall not act as a waiver of any
breach of this Agreement or of the effected Project Supplement
and shall not act as a release of either party from any
liability for breach of such party's obligations under this
Agreement.

(b) Notwithstanding any provision in this Agreement to the contrary,
licenses and sublicenses to end users granted by either party
prior to the effective date of termination are irrevocable and
shall survive the termination or expiration of this Agreement.

(c) In the event of termination or expiration of this Agreement or a
Project Supplement in accordance with Section 15.1 above, all
licenses granted to the breaching party prior to termination
shall remain in effect, subject to all terms and conditions
applicable hereunder, including applicable payment provisions.

(d) In the event of termination of this Agreement in accordance with
Section 15.3 and/or Section 15.2 where such New Entity is a
company identified in Attachment B, SCO shall promptly: (i)
return to IBM or destroy all copies of the Project Work and the
IBM Licensed Materials, in tangible or electronic form,
including any IBM Third party Licensed Materials, in SCO's
possession or control provided by IBM in connection with the
IA-64 Product and (ii) provide IBM with a written statement
certifying that SCO has complied with the foregoing obligations.
All licenses granted to SCO prior to termination in connection
with the IA-64 Product shall also terminate.

(e) In the event of termination of this Agreement in accordance with
Section 15.2 where such New Entity is a company identified in
Attachment B, and where IBM is still marketing and offering for
licensing the IA-64 Product, IBM agrees to offer to such New
Entity an object code license and distribution agreement based
on IBM's reasonable standard terms for such distribution.

[ Reply to This | # ]

Here's looking at you kid!
Authored by: brian on Thursday, August 05 2004 @ 08:13 PM EDT
"And now, in 2004, SCO is shocked, shocked to discover
that System V Release 4 code was used in AIX 5L.
Puh-lease."

Right out of Casablanca! "I'm shocked, shocked there is
gambling going on in here"....(Capt. Louis Renault)

Cheers PJ!

B.

---
#ifndef IANAL
#define IANAL
#endif

[ Reply to This | # ]

Links here (?)
Authored by: rand on Thursday, August 05 2004 @ 08:31 PM EDT
I couldn't find a thread for links :p

Do we have thi s one?

SCO and Caldera have jointly released a technology preview of AIX(R) 5L; a 64-bit UNIX operating system for Intel(R) Itanium(TM) Processors

The commercial 64 bit UNIX operating system for Intel(r) Itanium processors has been released as a technology preview. AIX 5L is the result of Project Monterey, a cooperative effort between SCO and IBM, to develop the next generation UNIX operating system for Intel Itanium processors. AIX 5L enables ISVs and customers to address a range of environments from workgroup servers to the largest data center servers using a single source tree, simply by recompiling. With its Linux affinity, AIX 5L offers a flexible environment enabling Linux applications to run on AIX 5L. This includes everything from Web server applications to 24 X 7 mission-critical enterprise applications.

---
carpe ductum -- "Grab the tape" (IANAL and so forth and so on)

[ Reply to This | # ]

Groklaw Medicine
Authored by: Anonymous on Thursday, August 05 2004 @ 09:20 PM EDT
When I heard this story this morning, I admit, even after all the SCO debunking,
I was worried they actually had something this time. But all it took was an
article on Groklaw to put everything back in perspective and to make everything
all right. Where would online journalism be without Groklaw? It'd be just a
bunch of lackeys, trying to churn out a quota of articles by quoting press
releases and adding titillating hypotheticals. PJ brings respect back to
journalism.

[ Reply to This | # ]

Can Lyons be learning?
Authored by: Anonymous on Thursday, August 05 2004 @ 09:26 PM EDT
I stumbled across the tale early & without benefit of Groklaw, &
observed with interest that Lyons offered several possible explanations other
than total culpability by IBM. Why, he even needled SCO about its obsession
with litigation.

Clearly he wanted to believe the new revelation. Even so, he gave off a
distinct whiff of Burnt Child.

[ Reply to This | # ]

SCO are too late to commence any legal action?
Authored by: ejort on Thursday, August 05 2004 @ 09:57 PM EDT
Isn't it more than two (2) years since the
hypothetical breach?

http://www.groklaw.net/article.php?story=2004030711323697&query=monterey

*************************
22.3 Choice of Law/Venue

This Agreement shall be governed by, and the legal relations between the
parties hereto shall be determined in accordance with, the substantive
laws of the State of New York, without regard to the conflict of laws
principles of such State, as if this Agreement was executed in and fully
performed within the State of New York. Each party hereby waives any
right to a trail by jury in any dispute arising under or in connection
with this Agreement, and agrees that any dispute hereunder shall be
tried by a judge without a jury. __Any legal or other action related to a
breach of this Agreement must be commenced no later than two (2) years
from the date of the breach in a court sited in the State of New York.__

[ Reply to This | # ]

Smoking Gun?
Authored by: Anonymous on Thursday, August 05 2004 @ 10:27 PM EDT
Yawn ... wake me when SCOX has something interesting to say.

[ Reply to This | # ]

Monterey Agreement
Authored by: Anonymous on Thursday, August 05 2004 @ 10:35 PM EDT
I have a splitting headache, and so I did not read the entire Monterey
Agreement, but it is obvious the SCO (old) did not buy into the everything coded
by you is mine to control forever stance that the current SCO belives.

There is a lot of writing in the agreement about who owns what and how
inventions are to be handled. If old SCO thought like the new SCO, then there
would not need to be so much language devoted to this topic. Also I am sure
that the lawyers would have re-iterated that the new stuff would be under SCO's
control just like the old stuff.

I haven't gone through the agreement exhaustively, but the scanning I did do
seems to negate new SCO's definition of the word derivitative.

Just a thought.

[ Reply to This | # ]

A Lyons' Tale: SCO's New Claim and a History Lesson for Them
Authored by: Anonymous on Thursday, August 05 2004 @ 10:43 PM EDT
<em>He's never tried GNU/Linux. Last winter, when he interviewed me for
the first hatchet job, speaking of live and learn, I offered to send him
Knoppix, but he declined, telling me that he wasn't interested in computers and
he didn't think he needed to know technical things to write about them as a
journalist.</em>

Yep, that's Lyons for ya. I had an email exchange awhile back, and he actually
comes off pretty sensible, saying he'd use linux if he could do all of his
office work on it.

I thought that one was funny.. .I type up reports, do project proposals, write
up functional specs including UML diagrams, and make some excel workbooks of
finance proposals.

It seems that his words, like Darl's, should always be taken with a grain of
salt

[ Reply to This | # ]

Who cares? SCO has no copyrights
Authored by: Anonymous on Thursday, August 05 2004 @ 11:40 PM EDT

Well, everyone again is trying to analyze the IBM case separately from
the Novell case. So, as usual, the analyses fall short.

When SCO sued Novell, Novell asserted there was no 204(a) writing
transferring copyrights to SCO. In the time up to Judge Kimball's
ruling, SCO failed to produce anything beyond Amendment 2, which
Judge Kimball has said won't do.

We may assume SCO still has no 204(a) writing, or they would have
publicized it. So, we may also assume that Judge Kimball's opinion of Amendment
2 will not change, since he has no new facts that would
require him to change it.

All this makes IBM discovery irrelevant. SCO has no Unix copyrights,
so it therefore has no standing to inquire what code IBM has, or how
IBM has used it.

Hope Novell has some more goodies for us in their filing tomorrow.

[ Reply to This | # ]

New SCO Unix influenced by what they got from Discovery?
Authored by: Anonymous on Friday, August 06 2004 @ 12:03 AM EDT
It is interesting to me that just a little while after SCO obtained all that IBM
AIX code during the discovery part of their suit against IBM, they now have a
new version of Unix they are releasing. And this is with their somewhat reduced
staff.

It might be interesting to "discover" their source code, in case they
lifted any IBM code into their proprietary code. Checking if significant
portions of the binary code matches IBM complied code might just bring some
supporting evidence.

[ Reply to This | # ]

It gets dumber and dumber.
Authored by: mobrien_12 on Friday, August 06 2004 @ 12:13 AM EDT

An insightful Slashdot comment told me to read the Monterey Agreement.


(d) License to IBM of Licensed SCO Materials and SCO Project Work
  1. The license grants contained in this section shall apply to all SCO Third Party Licensed Materials unless different terms for a specific item of SCO Third Party Licensed Materials are specified in a Project Supplement. Any such different license terms must, at a minimum, provide a worldwide, nonexclusive right and license consistent with the terms of the license grants contained in this section for the purpose of inclusion with, use and distribution of the IA-32 Product and the IA-64 Product. Any separate license grant for any item of the SCO Third Party Licensed Materials contained in a Project Supplement which is more limited than the license grants contained in this section must be applicable only to items which are separable from other code in the Deliverable.
  2. Subject to Section (d) (1) above regarding third party or other restrictions, SCO hereby grants to IBM a worldwide, non-exclusive, royalty free (subject to the royalty provisions set forth below), perpetual and irrevocable (subject to Section 14.0, "Termination") right and license under SCO's and applicable third parties' copyrights, to the extent SCO has the right to grant such rights, and any trade secrets or confidential information in the Licensed SCO Materials and SCO Project Work which are included in Deliverables to (i) prepare or have prepared Derivative Works, (ii) use, execute, reproduce, display and perform the Licensed SCO Materials and SCO Project Work and Derivative Works thereof, (iii) sublicense and distribute the Licensed SCO Materials and SCO Project Work and Derivative Works thereof either directly or through Distributors, in the form of Source Code, Object Code, Documentation, and/or in any other form whatsoever, and (iv) grant licenses, sublicenses, and authorizations to others (including without limitation IBM Subsidiaries, Distributors and any other third parties), on a non-exclusive basis that is equal to the scope of the licenses granted hereunder, limited only as specifically described in Section (e) below.

(e) Source Code Sublicensing With respect to either party's Licensed Materials and Project Work contained in the IA-64 Product (as described in applicable Project Supplements), both parties rights to sublicense Source Code to third parties under the sections (c)(2) and (d)(2) above, shall be limited in the following manner: When IBM sublicenses the IA-64 Product containing Licensed SCO Materials and/or SCO Project Work in Source Code form or when SCO sublicenses the IA-64 Product containing Licensed IBM Materials and/or IBM Project Work in Source Code form, the parties shall not grant the third party the right to further grant source sublicenses to the other party's Licensed Materials or Project Work. Further, when licensing such Source Code, both parties shall only grant the right to create Derivative Works required for the following purposes:
  1. Maintenance and support;
  2. Translation and localization;
  3. Porting, optimization and extensions;
  4. Any other Derivative Works agreed to by SCO and IBM.

IBM specifically gets the power to sublicence the PRODUCT (software) for purposes of porting. If you want to get really nitty gritty, IBM sublicenced the PRODUCT to a division of IBM for porting to the PPC chip. Reading the agreement, the PRODUCT is software, not an architecture. You can read the termination section later... the licence can only be terminated in the case of a breach.

So what if SCO found an email which said that there might be a problem? It could have been sent by someone who doesn't know what he was talking about.

This is another non-literal IP crack fantasy, but it did take their stock back above $5.00. :p

[ Reply to This | # ]

A Lyons' Tale: SCO's New Claim and a History Lesson for Them
Authored by: Anonymous on Friday, August 06 2004 @ 01:21 AM EDT
The announcement that IBM was ending development was in August 2000. The SCO-IBM
contract had a six month wind-down period and a change of control provision.
Neither of those took effect until 2001, so the 2001 article PJ mentions doesn't
demonstrate her point at all.

[ Reply to This | # ]

WEAK
Authored by: Anonymous on Friday, August 06 2004 @ 01:47 AM EDT
No wonder the article says "to be continued", as it didn't acquit IBM
in these charges at all.

The question is simple - does IBM have a license to redistribute that code
today? Haven't seen anything that shows they do.

[ Reply to This | # ]

  • WEAK - Authored by: Anonymous on Friday, August 06 2004 @ 01:55 AM EDT
    • WEAK - Authored by: Anonymous on Friday, August 06 2004 @ 07:55 AM EDT
      • WEAK - Authored by: Anonymous on Friday, August 06 2004 @ 08:43 AM EDT
  • WEAK - Authored by: Anonymous on Friday, August 06 2004 @ 02:02 AM EDT
  • Your post is weak - Authored by: Anonymous on Friday, August 06 2004 @ 02:26 AM EDT
Technology Preview?
Authored by: Anonymous on Friday, August 06 2004 @ 01:55 AM EDT
Exactly how does this give IBM rights to redistibute infinitely?

[ Reply to This | # ]

Thanks pj
Authored by: kawabago on Friday, August 06 2004 @ 01:57 AM EDT
I knew it was BS when I read it but I didn't have all the pieces in front of me
to put it together. You did an excellent job and much faster than I expected!

[ Reply to This | # ]

Darl (thinks he) owns Project Monterey
Authored by: Anonymous on Friday, August 06 2004 @ 02:02 AM EDT
I watched the SCO fiaSCO develop, first suing IBM (one has to ask why IBM), then
Novell, et al. I could not find a logical reason to take on IBM. Then I learned
about Project Monterey, and suddenly it became clear. Darl is just very upset
that IBM killed the project. (I'm assuming) that when he began to look at the
books and history, there staring him in the face (ugh) was the reason for his
current problems. If only IBM had finished the project he wouldn't be in the
mess he was looking at. (Of course, not being the vindictive type) Darl chose
to punish IBM; and with a little help from his friends Anderer and Gates his
current mess took on a life of its own. With a little luck, IBM wouldn't want
to take the time and effort to fight him. All he had to do was create enough of
an irritant that IBM would simply buy SCO and put that problem to rest.
Unfortunately, Darl is not very good at subtlety and didn't know when to keep
quiet. Fortunately, the M$ plan didn't require subtlety. Now after his plan
failed, and he killed his business, alienated customers, offended IBM, he has
simply to stew in his own juices until later this month. I could be incorrect
in some of the latter ramblings, but I truly believe that it all started with
Project Monterey.

[ Reply to This | # ]

Re-posted for emphasis
Authored by: inode_buddha on Friday, August 06 2004 @ 02:24 AM EDT
Doing this search at Computerworld Weekly turns up a decent timeline, I haven't read/saved it all yet. There are 724 fairly relevant matches there.

---
"When we speak of free software, we are referring to freedom, not price." -- Richard M. Stallman

[ Reply to This | # ]

To win a Court Case...
Authored by: Anonymous on Friday, August 06 2004 @ 04:34 AM EDT
...SCO need evidence on their side. Their legal team are not stupid [not with Boise in the frame]. If I follow the threads of this story correctly, SCO received from IBM a whole stack of material via discovery. They then did some research and, lo!, during a convenient lull in the legal proceedings, up pops this story that SCO claimed to have found an IBM smoking gun in the discovery material.

Now, being a complete cynic, I smell something fishy here. If SCO wanted to build a court case that they were going to win; a case that they wanted to hold before a jury, then evidence such as this would be carefully preened, tidied and prepared for the courtroom. Boise and his team would be looking for bullets like this, that they can legitimately fire across the court at IBM.

Well, my thinking here is a little suspect, so someone help me out, please... My theory goes down to the law and evidence. If SCO had evidence of theirs that they wanted to bring to the case, they have to declare it to IBM in advance, and vice-versa. But in this case, SCO claim to have found evidence that supports their theory, but which came from IBM themselves. In a jury trial, I would have thought, [IMHO, IANAL], evidence like this is worth it's weight in gold...

"You see, ladies and gentlement of the jury, here stand IBM, incriminated by their own evidence..."

So my initial reaction is to go with the mainstream comments in this thread; that SCO are once again manipulating the media, once again mis-representing the facts.

However, there is another interesting slant to this claim. This latest fertiliser from SCO seems to be moving away from the claim that IBM put SCO "IP" into Linux directly. Now we're looking at SCO claiming that IBM stole SCO code and put it into AIX. That, my friends, is a way different kettle of fish. Can anyone spell, 'Amended Complaint'?

I think that the best news of all is that we've got some smart, savvy, street-wise judges working on these SCO cases. It won't take them long to figure out who is doing the fancy footwork here...

IBM, if you've got someone scanning groklaw and reading this, I'd say it was time for you to up the ante a little more? How is your trawl of your own patent portfolio coming along? We know you said yesterday that you would never use your patents to attack Linux, but you didn't say anything about using it to attack scum-sucking parasites, did you?

[ Reply to This | # ]

Legal Tactics - Darl's bet
Authored by: dodger on Friday, August 06 2004 @ 04:45 AM EDT
Years ago, I was a juror on a case between a home owner and a renter. The home
owner wanted his house back and sued to get the man out. Unfortunately for the
owner, the renter was a good lawyer. He was able to show that he had tried to
lengthen the rental period and that the owner said "don't bother me with
these things. Talk to my agent". The agent gave permission and the man
expected to stay in the house for the next school year. Then the owner sued to
get the man out; he wanted his house back. The judge asked us to consider
whether the renter had tried hard enough to contact the owners; and whether it
appeared as if the agent had the right to lengthen the contract. The judge
pointed out that the law does not require that the agent 'has' the rights, but
only if the agent is 'presented' as having the rights. We sided with the renter
against the owner.

In any legal contract between parties, there are grey areas, particularily if
the legal teams did not work very hard to shore up the grey areas.

Darl's bet is that he can find grey areas that he can sue and win on. His use of
the press is to let out a trial balloon to see if it floats and to garner public
support and bolster his sagging stock.

So far, Groklaw has been more than efficient in shooting down the balloons.

So far, the 'Smoking Gun' is SCOG's wiener left on the grill too long.

[ Reply to This | # ]

  • more like...... - Authored by: Anonymous on Friday, August 06 2004 @ 09:08 AM EDT
A Lyons' Tale: SCO's New Claim and a History Lesson for Them
Authored by: Anonymous on Friday, August 06 2004 @ 05:02 AM EDT
The very same Caldera web page says
Open UNIX is the first product to result from Caldera's unification of UNIX(R) and Linux(R) for Business. Open UNIX 8 will maintain compatibility and continuity with the UnixWare 7 operating system while providing a complete Linux environment. Users can run Linux and UNIX applications on the same system.
Oops. Anyone else asking themselves how UNIX(R) code got into Linux or vice versa?

[ Reply to This | # ]

SCO, google cache and wayback.
Authored by: Franki on Friday, August 06 2004 @ 05:11 AM EDT
If Darl(ek) and co have been busy deleting evidence, and requesting that web
archives do the same. and that evidence is then requested by IBM and SCO claim
to no longer have it, even though it was shown to be in archive existance when
SCO made these claims, can they be found in contempt for destroying evidence?

These articles and releases clearly shoot down newSCO's claims, I don't think
they were released to futher the case, more likely to further the stock price
and muddy the water. But if they do proceed with this, can they be found in
contempt for destroying evidence and wasting the courts time?

I will bet that when this case first came out, somebody at IBM would have
mirrored all of Caldera and SCO's site, so IBM probably already know about this
and have copies of everything. SCO, if you are gonna lie, remove the evidence
BEFORE you file a lawsuit, don't remove it a year later.


Says Darl(ek): "Exterminate Linux!, Exterminate Linux!"
http://ourworld.compuserve.com/homepages/grahamwalters/dalek_fr.htm

rgds

Franki


---
Is M$ behind Linux attacks?
http://htmlfixit.com/index.php?p=86

[ Reply to This | # ]

Seems like...
Authored by: inode_buddha on Friday, August 06 2004 @ 05:17 AM EDT
SCO knew very well what was going on, according to their own project manager.

---
"When we speak of free software, we are referring to freedom, not price." -- Richard M. Stallman

[ Reply to This | # ]

the original SCO/IBM press release
Authored by: Anonymous on Friday, August 06 2004 @ 07:24 AM EDT
"The result will be a single product line that will run on IA-32, IA-64 and
IBM microprocessor systems that range from entry-level servers to large
enterprise environments."


http://web.archive.org/web/20000823145635/www.sco.com/press/releases/1998/6831.h
tml

[ Reply to This | # ]

We missed the point...
Authored by: Anonymous on Friday, August 06 2004 @ 08:51 AM EDT
I agree with everything PJ has posted, but, I wonder if we missed the point. I
read the SCO press release as focusing on IBM not having a LICENSE for AIX 5 -
not that they didn't know IBM was using SRV4 (in fact, I don't see SCO saying
anything close to that). As I read it, IBM was granted a license, but that
license became invalid once IBM left Project Monterey. Hence, IBM is using SRV4
in AIX5 without a "proper license" - that's what SCO is claiming - not
that they didn't know.

If this is true, IBM, and us, have a real problem.... Please re-read the press
release.

[ Reply to This | # ]

IBM wouldn't fork AIX
Authored by: jseigh on Friday, August 06 2004 @ 10:39 AM EDT
IBM was and is accutely aware of the problems with trying to concurrently maintain different versions of a product. It becomes a huge headache trying to put new features into different code bases on a coordinated and timely basis. So it is extremely unlikely that AIX central architecture would allow a major fork in the AIX base without provisions and a plan to merge the forked code bases back together. There would have been discussions about this before the fact most likely, unless a lot of people really screwed up and it was allowed to stay that way which I consider unlikely.

So SCO may be just seeing the before the fact memos. If the wording of the licenses supports porting from the Intel base back to the common and platform specific AIX code bases, then I would think the proper action was taken on before the fact memos.

[ Reply to This | # ]

Linux affinity
Authored by: Anonymous on Friday, August 06 2004 @ 12:52 PM EDT
LOL, they mentioned GNU tools and Linux affinity.
This reminds me of SunOS which had a crappy tar (couldn't compress the file on
fly), but it wasn't a problem to pick up the GNU version :)
If you look a bit into the improvements, i guess you'll find lots of similar
stuff that came from the free side.
It is not simply unethical to claim them later, it is pure theft.

[ Reply to This | # ]

smoking gun/smoking crack
Authored by: mossc on Friday, August 06 2004 @ 02:42 PM EDT
So TSG thinks they found a smoking gun but it is probably just the smoke curling
out of the end of their crack pipe.

[ Reply to This | # ]

Has Lyons really been debunked?
Authored by: elcorton on Friday, August 06 2004 @ 03:53 PM EDT
[This is a slightly edited crosspost from the Yahoo SCOX board.]

I'm not completely satisfied with the debunking I've seen so far; maybe
someone can help me out.

The analysis here and on Yahoo rests on two pieces of evidence: the Santa
Cruz web page (now lost) from 2001, and the Monterey Agreement.

The web page acknowledged that there was some SVR4 code in AIX running
on POWER hardware, and that was after Project Monterey had been
canceled. Therefore, the argument goes, promissory estoppel bars any
claim by Santa Cruz or its successors for breach of a license involving SVR4
in AIX. I don't see that. If SCO ever raises the issue in court, it will no
doubt allege that IBM used SVR4 code that Santa Cruz didn't know about at
the time.

As for the agreement, it must be as obvious to SCO as it is to us that
sections 2.0(d)(2) and 15.4(b) give IBM irrevocable rights to the
"Licensed SCO Materials," whatever they are -- the public part of
the agreement doesn't say. They certainly include Unixware 7 and whatever
SVR4 content was in it. IBM's rights aren't restricted as to hardware
platform or product -- except in section 2.0(d)(1):

"The license grants contained in this section shall apply to all
SCO Third Party Licensed Materials unless different terms for a
specific item of SCO Third Party Licensed Materials are
specified in a Project Supplement. Any such different license
terms must, at a minimum, provide a worldwide, nonexclusive
right and license consistent with the terms of the license
grants contained in this section for the purpose of inclusion
with, use and distribution of the IA-32 Product and the IA-64
Product. Any separate license grant for any item of the SCO
Third Party Licensed Materials contained in a Project Supplement
which is more limited than the license grants contained in this
section must be applicable only to items which are separable
from other code in the Deliverable."

Now, what are the "SCO Third Party Licensed Materials?" The term is
defined in section 1.22:

" 'SCO Third Party Licensed Materials' shall mean any Code or
Documentation licensed to SCO from a third party which SCO makes a part
of the Licensed Materials, and any applicable Enhancements and
Maintenance Modifications thereto."

Santa Cruz never asserted copyrights to AT&T UNIX; as far as it was
concerned, Novell owned the copyrights. So it seems to me that SVR4
would be included in the "Third Party Licensed Materials." Do we know
whether different license terms for it were specified in a Project
Supplement? There were at least two Project Supplements, referenced in the
agreement as A and B, and attached as Exhibit A -- but that's not included
in the published document.

For the sake of argument, let's assume that there were separate license
terms for SVR4, and that those terms did restrict IBM's use of the code to IA
hardware. Maybe SCO found an internal IBM email along the lines of, "OMG,
we don't have rights under 2.0(d)(1) to use files X, Y, Z, ... in AIX!!"

Assuming all that, there still seems to be a problem for SCO here. In order
for that section to apply, the code has to have belonged to somebody else,
not Santa Cruz. Santa Cruz only owned the sublicensing rights. Even if
Santa Cruz had a claim against IBM for using that code, SCO (of today) does
not.

[ Reply to This | # ]

    A Lyons' Tale: SCO's New Claim and a History Lesson for Them
    Authored by: jim Reiter on Friday, August 06 2004 @ 07:04 PM EDT
    Aren't SCO's claims of license violation immaterial since Novell and not SCO
    controls the IBM license. SCO is delusional. As I read the Novell/SCO purchase
    agreement Novell can make changes to or order changes to the IBM license with
    out SCO's approval. Not so for SCO.

    When SCO tried to pull the IBM license, Novell said no. SCO shut up. What does
    it take to shut up SCO?

    Is there another agenda here that is willing to let SCO make fools out of
    themselves (as if that requires any talent) in order to establish some
    precedents reqarding Linux and free software?

    [ Reply to This | # ]

    A Lyons' Tale: SCO's New Claim and a History Lesson for Them
    Authored by: Fractalman on Saturday, August 07 2004 @ 12:42 AM EDT

    Seeing as how so many of the web sites and articles referenced here have been pulled already, it would seem Groklaw would have to do its own "wayback" just before posting the article. A simple save as should do it.

    I see one has apparently disappeared since I brought it up in a tab. So I saved the tab.

    And check the saved copy before deleting the tab, it looked like this!!!!...


    Document Not Found
    To find the document you're looking for, please see our company sitemap

    In that case one has to grab the content from the open tab and paste it into an editor. Then check the stored file again!

    [ Reply to This | # ]

    also on eweek, which has a feedback section
    Authored by: davidwr_ on Saturday, August 07 2004 @ 04:43 PM EDT
    E-Week has the same story here.

    You can reply - I've already replied with a link back here, so hopefully the FUD will be mitigated.

    [ Reply to This | # ]

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