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More SCO Saber Rattling and their Crumbling ABI Claim
Friday, March 19 2004 @ 11:40 PM EST

There is a ZDNet headline today,"SCO targets federal supercomputer users," that at first might get you hyperventilating, but when you read the fine print, it's not quite what it seems. It's nothing new on SCO's part, just confirmation that Lawrence Livermore National Laboratory and the National Energy Research Scientific Computing Center got their threatening letters.

If you're like me, your first reaction is, Now what? What are they planning? Is this a new front? As it turns out, that's more what they would probably like us to feel. As usual, there is a lot of FUD in the air, plus some factual issues that need clarification. While SCO likes to sound terrifying, here's why I think this story shouldn't terrify anybody.

Here are the first two paragraphs:

"The SCO Group, the company that's hoping to profit from its assertion that Linux violates its Unix intellectual property, has threatened legal action against two federal supercomputer users, letters released Thursday show.

"SCO sent letters raising the prospect of legal action for using Linux to two Department of Energy facilities, the Lawrence Livermore National Laboratory and the National Energy Research Scientific Computing Center (NERSC)."

This is followed by some paragraphs from the letter threatening to turn over their names to their legal counsel if they don't sign with SCO. Sounds like it just happened, right? But if you read further down, it says the letters were sent in December. It's the same letter everybody, including Lehman Brothers, got, which mentioned ABI files:

"The letter to the Livermore lab was one of many that SCO sent in December."

The ABI Files

Some more fine print: the letters that were sent say the offensive files are the ABI files:

"The letter argues that dozens of files in Linux use application binary interfaces, taken from Unix, in violation of U.S. copyright law."

And although the article says that the letters were "no idle threat" since SCO has indeed sued AutoZone and Daimler Chrysler, the fact is that neither was sued over the ABI files, despite receiving the same threatening letters. As the article points out correctly, SCO has some problems pursuing copyright infringement lawsuits while simultaneously litigating with Novell over who actually owns the copyrights in the first place.

Here is how SCO describes its lawsuit against AutoZone in their most recent 10Q:

  "On or about March 2, 2004, we brought suit against AutoZone, Inc. for its alleged violations of our UNIX copyrights through its use of Linux.  Specifically, the lawsuit alleges that AutoZone violated our UNIX copyrights by running versions of the Linux operating system that contain code, structure, sequence and/or organization from our proprietary UNIX System V code in violation of our copyrights.  The lawsuit filed in U.S. District Court in Nevada requests injunctive relief against AutoZone’s further use or copying of any part of our copyrighted materials and also requests damages as a result of AutoZone’s infringement in an amount to be proven at trial."

There is no mention of ABI files, to the extent anyone can make out what they mean. If they are referring again to using shared libraries, a former employee who did the switch to Linux has stated publicly it was done without using shared libraries.

And here is their description of their claim against Daimler Chrysler:

"On or about March 3, 2004, we brought suit against DaimlerChrysler Corporation for its alleged violations of its UNIX software agreement with us.  Specifically, the lawsuit alleges that DaimlerChrysler breached its UNIX software agreement with us by failing to certify its compliance with the UNIX software agreement as required by us by January 31, 2004.  The lawsuit, filed in Oakland County Circuit Court in the State of Michigan, requests the court to issue orders declaring that DaimlerChrysler has violated the certification requirements of its UNIX software agreement, permanently enjoin DaimlerChrysler from further violations of the UNIX software agreement, issue a mandatory injunction requiring DaimlerChrysler to remedy the effects of its past violations of the UNIX software agreement and award us damages in amount to be determined at trial together with costs, attorneys’ fees and any such other or different relief that the Court may deem to be equitable and just."

As you can see, this has nothing to do with ABI files or copyright infringement either. It's all about a license and whether they should have sent back audit info or not. If Lawrence Livermore National Laboratory and the National Energy Research Scientific Computing Center are in any danger, these two cases don't show it.

  Here's some information on ABI files and why I don't believe they can be successfully used for SCO's purposes anyway:

This doesn't even go into the simple truth, pointed out by Linus, that the header files don't contain any code anyway:

"As you can see, it's basically something like five files, it's just that several of them are replicated for every single architecture out there. And the thing is, those files don't even contain any code. They contain things like the error number lists--and, yes, we made the error numbers match with traditional Unix on purpose, since, for example, Linux/alpha wanted to be binary-compatible with OSF/1. Ask any programmer what this is, and he'll tell you it's just a C header file that gives symbolic names to static error numbers."
And then there is another issue, as pointed out by Eben Moglen, that SCO released the code under the GPL themselves and that it is available under the same license from Novell:

"Many of the large, sophisticated enterprises who are the targets of SCO’s efforts responded to their claims last summer by taking copies of the Linux program, under GPL, from SCO’s own FTP server, where the code remained publicly available. They therefore have an auditable license from SCO to use, copy, modify and redistribute the code about which SCO continues to threaten legal action. For such enterprises, which now can also get a copy of the same program, under the same license, from Novell, any action by SCO to bring a copyright infringement claim would be particularly foolish."

The Novell Role

In addition, Novell has reminded SCO in its correspondence of rights they believe they have under the Technology License Agreement, so even if Novell didn't have copyright ownership, it claims the right to authorize its customers to use UNIX code. Novell bases its position on its interpretation of the 1995 Asset Purchase Agreement, the Technology License Agreement, and Amendment 1 and Amendment 2, to the APA.

Novell sent SCO a letter reminding SCO of the Technology License Agreement, which it says gave Novell a license to not only use the "licensed technology" itself but also to "authorize its customers to use, reproduce and modify" it and to sublicense and distribute same "in source and binary form":

"Section II.A.(1) of the TLA provides Novell with 'a non-exclusive, non-terminable, worldwide, fee-free license to . . . use, reproduce and modify, and authorize its customers to use, reproduce and modify, Licensed Technology (including related documentation) in their respective internal business operations' (emphasis added).

"Section II.A.(2) provides Novell with 'a non-exclusive, non-terminable, worldwide, fee-free license to . . . sublicense and distribute, and authorize its customers to sublicense and distribute, such Licensed Technology and modifications thereof, in source and binary form' (emphasis added).

"The license in Section II.A.(1) has no restrictive provisions.

"Section II.A.(2) contains apparent restrictions on the scope of the licensed rights, but they apply only to sublicensing and/or distribution by Novell and not to Novell's authorization of its customers to sublicense or distribute."
So you can judge for yourself, here are the cited clauses from the TLA:


"A. Effective upon the Closing Date and in connection with the transfer of the Assets by NOVELL to SCO pursuant to the Asset Purchase Agreement, NOVELL hereby retains, with the consent of SCO and, shall have a non-exclusive, non-terminable, world-wide, fee-free license to

"(1) use, reproduce and modify, and authorize its customers to use, reproduce and modify, Licensed Technology (including related documentation) in their respective internal business operations; and

"(2)subject to paragraphs B and C of this Section II, to sublicense and distribute, and authorize its customers to sublicense and distribute, such Licensed Technology and modifications thereof, in source and binary form; provided, however, that (i) such technology and modifications may be sublicensed and/or distributed by NOVELL solely as part of a bundled or integrated offering ("Composite Offering"); (ii) such Composite Offering shall not be directly competitive with core application server offerings of SCO, and (iii) the Licensed Technology shall not constitute a primary portion of the value of such Composite Offering. SCO understands and acknowledges that such restrictions on sublicensing and/or distribution shall not affect any rights specifically retained by NOVELL under the Asset Purchase Agreement, including but not limited to rights under Transitional Contracts."

Attorney Mark Koehn

The article mentions an attorney, Mark Koehn, who found out about the letters by doing a FOIA request. Here is some info about Mr. Koehn from Findlaw, who turns out to be another lawyer/IT guy. Before this case, I had no idea there were so many such:

"Prior to earning his law degree, Mr. Koehn was a senior consultant with the predecessor to Accenture, where he supervised design and installation of information systems including the pilot for the Securities & Exchange Commission's EDGAR system. He is admitted to practice in the District of Columbia, Maryland, and Virginia. Mr. Koehn currently serves on the Multimedia and Interactive Technologies Committee of the American Bar Association, Section on Science and Technology."

He was also one of the speakers at the recent OSBC2004 Open Source Business Conference. He's with Shaw Pittman LLP and the article indicates he represents some recipients of the SCO letters:

"Mark Koehn, an intellectual-property attorney at Shaw-Pittman, received the letters from the government in response to a Freedom of Information Act request. Koehn's firm represents some companies that have received letters from SCO, he said."

Here is a paragraph from their About Us page:

"We've made an unrivaled commitment to the creative use of technology in the practice of law. This focus stems not just from our deep involvement with the technology sector, but also from our conviction that constant, real-time sharing of our expertise will make us more valuable counselors."

Their litigation page says that they are a 50-lawyer firm that practices in the following areas: technology and intellectual property matters; commercial disputes; insurance coverage; energy and environmental claims; antitrust; health law; employment disputes; defamation; international trade; white collar criminal issues; and trust and estate matters. You can read a presentation Mr. Koehn gave on "Recent Developments in Intellectual Property Litigation" from 2001 by clicking on a "Publications/Presentations" link on this page. It contains this sobering material:

"By developing strategies for acquiring, protecting, and licensing intellectual property, savvy media convergence players are leveraging their digital assets and managing risk. Obtaining patent protection for software, which enjoys only modest protection under the copyright law, is only one of many new strategies. For instance, by adding technological measure for controlling access to and copying of copyrighted works, including databases, content owners may deter would-be infringers and seek larger recoveries from those who do infringe.

"Media convergence players who ignore the rapid evolution in intellectual property law will miss opportunities to expand revenue streams and invite crippling disasters."

Well. I guess it's clear where he stands. It raises the question, why release these letters today? Presumably, since he now must defend clients from claims of infringement, he will have to look at matters from the flip side. You will find the Endnotes of the paper useful, because he very clearly explains contributory infringement and what constitutes fair use. [1] You will no doubt recall that when David Boies was asked by Dan Farber about Red Hat in July of 2003, "Boies said that under the copyright law SCO could sue Red Hat, or others, for infringement and contributory infringement."

Then there is the further question of whether header files can be copyrighted. The "artistic expression" of code is what's copyrightable, not "structure and methods," last I looked. That's if the header files are even code.

Victims are not without resources, making the saber rattling look more silly than scary. If anyone were to cave in and sign up for a SCO license in the face of all this evidence, the natural question would have to be, why? Speaking for myself, I believe I'd rather my tax dollars go to buy one of those DoD toilet seats for $640 each than pay $699 for a SCO license. At least with the toilet seat, you get something for your money, something you actually need. We will have another article in our series of articles on the ABI files next week, by the way, with even more evidence that the ABI files are not useful to SCO.

The University of California Angle

Finally, I've heard from two sources now that The University of California (and that means the Board of Regents) manages NERSC and Lawrence Livermore National Laboratory, as well as Lawrence Berkeley National Laboratory and Los Alamos National Laboratory. In the UC system, the national labs are treated as equivalents of the campuses and their employees are UC employees. Therefore, SCO appears to have blundered in sending them these letters. The BSDi/UC/USL settlement presumably allows UC to continue to use and internally distribute all of those ABI files, even if no one else on the planet could. Did no one on the legal team, after being paid those millions, bother to go through the list of names of entities to send letters to? It seems the adage is not true after all. You don't always get what you pay for. And speaking for paying for things, by sending these letters to DoE entities, SCO is asking the taxpayers to pay for their "IP compliance" license.

Lawrence Livermore's Vendor, LinuxNetworX, is a Canopy Company

One final, weird detail. Lawrence Livermore National Lab chose Linux NetworX to design, integrate and deliver its GNU/Linux supercomputer in 2002:

"Multiple programs at LLNL will use the Linux NetworX Evolocity(TM) clustered supercomputer to support the Laboratory's national security mission. When delivered, the Intel-based cluster is expected to be one of the five fastest supercomputers in the world."

This is from the press release at the time, in 2002. You may recall that in February, LinuxNetworX was chosen by the DoD to build "a new, high-performance 2,132-CPU Linux cluster supercomputer for the U.S. Department of Defense as part of an IT modernization program", and is also "scheduled to deliver five other cluster systems to other Defense Department agencies later this year under the modernization program."

LinuxNetworX is a Canopy Group company. Until recently, Darcy Mott sat on the board of both Canopy and LinuxNetworX. You can see that on this archived page of LinuxNetworX bios of the executives. The date of that page is June of 2003. In September, someone posted that same page showing Mr. Mott on LinuxNetworX's board. Today if you go to the current page, his name has disappeared. He has also been on the Board of Directors of SCO since 2002. Unless my math is off, would that not place him on the board of Canopy, LinuxWorx and SCO simultaneously while SCO was planning its legal strategies and also conceivably while LinuxWorX was applying for the DoD contract?

LinuxNetworX received $2 million in investment funding from the Canopy Group in 2000. It was listed as a Canopy Group company on Canopy Group's website until its recent site redesign.

So, a lot of tax dollars are going to this Canopy Group company for providing GNU/Linux GPL code to the DoD, while another Canopy Group company says Stick 'Em Up for more tax dollars to the DoE for using the very same Linux code that another Canopy Group company is selling them. What kind of a hustle is this? Here's why LinuxNetworX said they chose Linux:

"About the Linux Operating System

"Linux is a computer operating system that is distributed freely on the Internet. As an open source project, Linux allows developers to share information, code and suggestions to continuously maintain and improve the system. Linux Networx selected the operating system for its stability, reliability and rapid development."

Here's a quotation from the Computer World story that indicates the scale of the February deal and why Linux NetworX was chosen:

"'Linux Networx has proven [that] cluster technology is reliable, robust and mature enough to be selected in even in the most demanding environment,' Thomas Kendall, lead systems engineer at the Army Research Lab said in a statement. 'This system will be a key component of the [lab] and the entire DOD Modernization Program.'"

SCO very much relies on folks not noticing the fine print. That's what Groklaw is for, though, to point out the fine print. Journalists lack the time to check all the fine points, even good ones. Sad, but true, so as a public service, Groklaw is happy to provide helpful and clarifying details, which we hope will help both journalists and victims receiving the SCO threatening letters.

[1] "In analyzing the affirmative defense of 'fair use', the Copyright Act specifies four factors that must be considered: (1) the purpose and character of the use, including whether such use is of a commerical nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the coppyrighted work. 17 U.S.C.S. Section 107. Other relevant factors may also be considered, since fair use is an equitable rule of reason to be applied in light of the overall purposes of the Copyright Act.. . .

"A contributory infringer is one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another. Courts do not require actual knowledge; rather, a defendant incurs contributory copyright liability if he has reason to know of the third party's direct infringement."

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