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What the SCOsource License Was For Originally and What SCO Told IBM Court
Sunday, April 03 2005 @ 08:44 PM EDT

I am working with Groklaw's heretic, who is creating a new patents resources page, and in the course of that project, I came across a memo sent by SCO to their partners back in January of 2003. It explains fairly clearly what the SCOsource Linux license was originally for. Because Groklaw published this in the very early days, before you millions showed up, I decided it matters to run it again, to make sure everyone knows what SCO said the license was for.

In SCO's Memorandum in Opposition to IBM's Motion for Partial Summary Judgment on its Counterclaim for Copyright Infringement (Eighth Counterclaim), it claimed it never attempted to license or sublicense Linux. I thought it might be useful to put all in one place everything SCO ever said in the media and elsewhere about that license.

In SCO's Memorandum in Opposition to IBM's Motion for Partial Summary Judgment on its Counterclaim for Copyright Infringement (Eighth Counterclaim), SCO claimed the following:

SCO's RESPONSE TO IBM's "STATEMENT OF UNDISPUTED FACTS"

1. SCO copied and distributed the Linux kernel and other related Linux software for years prior to 2003, when SCO discovered that IBM and others had misappropriated SCO's copyrighted UNIX code by contributing it to Linux without SCO's approval. Promptly after this discovery, SCO suspended all sales and marketing of its entire Linux product line. Declaration of Erik W. Hughes (11/30/04) ("Hughes Decl.") ¶3.

2. In light of the legal issues arising from the misappropriation, SCO began offering its Intellectual Property License for Linux (the "UNIX License") for sale beginning on August 5, 2003. Hughes Decl. ¶6. The UNIX License is a license of SCO's UNIX software, not a license or sublicense of Linux or of any IBM-copyrighted work. Declaration of Chris Sontag (11/30/04) ("Sontag Decl.") ¶30. SCO has never attempted to license or sublicense Linux or any IBM copyrighted work, or any other GPL-licensed code. Id. (SCO therefore disputes IBM Statement of Undisputed Facts ("IBM St.") ¶66.) None of the documents listed in paragraph 66 of IBM's "Statement of Undisputed Facts" represents an attempt to collect royalties or licensing fees for Linux or any IBM product:

a. SCO's May 2003 letters to Fortune 1000 companies (IBM Ex. 28) stated that SCO intended to protect and enforce its "UNIX intellectual property" and did not attempt to license Linux or any IBM work;

b. SCO's May 14, 2003 press release (IBM Ex. 29) warned that "SCO's own UNIX software code is being illegally copied into Linux" and did not attempt to license Linux or any IBM work;

c. SCO's July 21, 2003 press release (IBM Ex. 30) announced that SCO would soon be offering "UnixWare® licenses" for the specific purpose of resolving intellectual property issues arising from the unauthorized contributions of SCO's proprietary code into Linux, and nowhere in this release did SCO make any attempt to license Linux or any IBM work;

d. SCO's August 5, 2003 press release (IBM Ex. 31) announced the availability of the UNIX License, which permits "the use of SCO's intellectual property" in Linux distributions, and this release does not reflect any attempt by SCO to license Linux or any IBM work;

e. SCO's August 10, 2003 agreement with Computer Associates (IBM Ex. 32) granted a "license to use SCO UNIX rights" on a Linux operating system, and did not license Linux or any IBM work;

f. SCO's October 14, 2003 invoice to Leggett & Platt (IBM Ex. 33) for an "IP Compliance License" does not even mention Linux and did not license Linux or any IBM work;

g. SCO's December 19, 2003 agreement with Questar (IBM Ex. 34) granted a license to use "SCO IP rights" which were defined as SCO's UNIX rights and expressly excluded Linux, and did not license Linux or any IBM product;

h. SCO's December 22, 2003 press release (IBM Ex. 35) announced "new initiatives to enforce and protect the company's intellectual property rights," and this release does not reflect any attempt by SCO to license Linux or any IBM product;

i. SCO's December 19, 2003 template letter (IBM Ex. 36) restated SCO's belief that SCO's proprietary code had been illegally copied into Linux, and this release does not reflect any attempt by SCO to license Linux or any IBM product;

j. SCO's January 16, 2004 letter to Lehman Brothers Holdings (IBM Ex. 37) stated that legal action would be considered unless Lehman purchased a UNIX license, and this letter does not reflect any attempt by SCO to license Linux or any IBM product.

k. SCO's March 1, 2004 agreement with Everyones Internet (IBM Ex. 38) granted a license to use SCO's proprietary UNIX code, and did not grant a license for Linux or any IBM product;

l. SCO's March 3, 2004 suit against AutoZone (IBM Ex. 39) alleges infringement of SCO's UNIX copyrights and does not reflect any attempt by SCO to license Linux or any IBM product;

m. In August 2004, SCO contemplated raising the price of its UNIX License (as noted in IBM Ex. 40), and SCO did not attempt to license Linux or any IBM product;

n. SCO's SCOSource division sells the UNIX License (as indicated in IBM Ex. 41), and neither this division nor any other part of SCO has ever attempted to license Linux or any IBM product.

3. SCO determined to offer its UNIX License, beginnning in August 2003, only because IBM had misappropriated SCO's proprietary source code and contributed hundreds of thousands of lines of that code into Linux. Hughes Decl. ¶6.

So, let's take a little trip back in time, to see what SCO actually said publicly about what its license was actually for. We'll start in January of 2003, when SCO sent a memo to its partners, explaining the new SCOsource program:

From: "TeamSCO Partner Program"
Date: Wed Jan 22, 2003 8:34:27 AM US/Eastern
Subject: SCO News: SCO Establishes SCOsource to License UNIX Intellectual Property

Dear Tony,

In an effort to keep you informed of new offerings and services provided by SCO, we would like to inform you of a business division, announced today, within SCO called SCOsource which will manage the licensing of its UNIX intellectual property. SCOsource will manage the substantial UNIX intellectual property assets owned by SCO, and will operate an array of licensing programs.

Key components of this announcement include:

* The creation of SCOsource, a division of SCO that will expand the licensing of the company's core intellectual property, including the core UNIX source code.
* The first offering from SCOsource will be SCO System V for Linux-an end-user licensed product for use on Linux systems. SCO System V for Linux provides unbundled licensing of SCO's UNIX System shared libraries for use with UNIX applications, enabling them to run on Linux.
* The appointment of David Boies and the law firm of Boies, Schiller and Flexner to help research and advise SCO on the company's intellectual property.

** SCOsource **
SCO's patents, copyrights and core technology date back to 1969 when Bell Laboratories created the original UNIX source code. SCOsource will manage the licensing of this software technology to customers and vendors.

"SCO is the developer and owner of SCO UnixWare and SCO OpenServer, both based on UNIX System V technology," said Darl McBride, president and CEO, The SCO Group. "SCO owns much of the core UNIX intellectual property, and has full rights to license this technology and enforce the associated patents and copyrights. SCO is frequently approached by software and hardware vendors and customers who want to gain access to key pieces of UNIX technology. SCOsource will expand our licensing activities, offering partners and customers new ways to take advantage of these technologies."

** SCO System V for Linux **
The SCO System V for Linux license will provide access to SCO's UNIX System Shared Libraries for use with Linux. Customers frequently use SCO's shared libraries to allow UNIX applications to run on Linux. In the past, SCO's UnixWare and OpenServer license agreements did not allow these UNIX libraries to be used outside of SCO's operating systems. With this announcement, customers can now license these libraries from SCO for use with Linux without having to license the entire SCO operating system. This will enable customers to now run thousands of UNIX applications on Linux.

"The most substantial intellectual property in UNIX comes from SCO," said Chris Sontag, Senior Vice President for Operating Systems and SCOsource, The SCO Group. "While Linux is an Open Source product, it shares philosophy, architecture and APIs with UNIX. Starting today, SCO's libraries will be available to third-party application developers, OS vendors, hardware providers, services vendors, and end-users. SCO will help customers legitimately combine Linux and UNIX technology to run thousands of UNIX applications. SCOsource plans to create other new licensing programs to make our rich inventory of UNIX System technology available to the market."

SCO will offer SCO System V for Linux for $149 per CPU. Volume licensing discounts will also be available to enterprise customers and OEMs.

SCO is offering customers of SCO Linux Server 4.0 a license to SCO System V for Linux as a free value-add to their use of SCO Linux. Future updates to SCO Linux Server will include a license to SCO System V for Linux.

For more information, please email the TeamSCO Partner Programs Team at partners@sco.com or your local Channel Sales Manager.

Thank you,

TeamSCO Partner Program
partners@sco.com

So, at first, it was announced as a program to allow folks to use SCO's UNIX libraries outside of SCO's operating systems and specifically to use them with Linux without having to license the entire SCO OS.

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