Here's Addendum E [PDF] to IBM's Redacted Reply Memorandum in Further Support of its Motion for Summary Judgment on SCO's Contract Claims (SCO's First, Second, Third and Fourth Causes of Action) [PDF] as text, thanks to Groklaw member caecer.
It's titled, "An Illustration of the Absurdity of SCO's Claim" and it illustrates the result of applying SCO's contract claim to all the other Unix SysV licensees apart from IBM. Here's the opening:
SCO’s contract theory would lead to absurd results, not only for IBM, but potentially for the thousands of other UNIX System V licensees. If SCO were correct that the entire Dynix product is a “Derivative Work” of Unix System V, the possible repercussions for UNIX-related technologies would know no practical bounds, and SCO would be entitled to a windfall of outrageous proportions.
Would you like SCO to control the internet? According to its contract theory, the result, IBM says, would be "SCO would be able to claim control over the entire internet and every internet-enabled device in existence, such as: cell phones, Blackberry devices, network hardware, and even some space satellites."
Here's IBM's original Memorandum in Support of its motion for summary judgment on these claims, and here's SCO's memo in opposition. If someone could OCR the Reply Memorandum for me, #981, I'd appreciate it. It's humungous, 111 pages.
An Illustration of the Absurdity of SCO’s Claim
SCO’s contract theory would lead to absurd results, not only for
IBM, but potentially for the thousands of other UNIX System V licensees.
If SCO were correct that the entire Dynix product is a
“Derivative Work” of Unix System V, the possible
repercussions for UNIX-related technologies would know no practical
bounds, and SCO would be entitled to a windfall of outrageous proportions.
In its summary judgment papers and elsewhere, SCO has claimed that it
has the right to control non-System V material contained within an
alleged “Derivative Work” when such material is adapted for
use in a new work containing no System V code. For example, SCO has
claimed that it was improper for IBM to contribute to Linux certain RCU
material created entirely by Sequent software developers. The RCU
material contains no code copied from, or derived from, System V code,
yet since it was adapted to work as part of the Dynix product, SCO
claims that it controls RCU. (IBM Ex. 3 ¶¶ 144-166.) The
diagram below shows SCO’s alleged contractual basis for claiming
control of RCU if all Dynix is a “Derivative Work”:
As demonstrated, SCO’s theory is one of guilt by association.
Because RCU technology was implemented in Dynix, SCO claims that it may
control RCU (by preventing IBM from disclosing it to non-licensees)
because of its fortuitous inclusion in an operating system product that
may include some System V-derived code. Notably, SCO does not accuse
IBM of having engaged in behavior that the Agreement actually
contemplates, such as misuse of the actual Unix System V code.
While SCO’s theory has bizarre ramifications for IBM’s use
of its own intellectual property, some of the most absurd results of
SCO’s theory become apparent when applying it to the creations of
other System V licensees, past and present. Consider the case of TCP/IP
(Transmission Control Protocol/Internet Protocol), a technology first
widely implemented as part of the BSD operating system, which at the
time included licensed AT&T UNIX material.
(IBM Ex. 645 at 37-40.) TCP/IP eventually was removed from the
AT&T-licensed UNIX system and thus understood to be beyond AT&T’s
With the increasing cost of the AT&T source licenses, vendors that
wanted to build standalone TCP/IP-based networking products for the PC
market using the BSD code found the per-binary costs prohibitive. So,
they requested that Berkeley break out the networking code and utilities
and provide them under licensing terms that did not require an AT&T
source license. The TCP/IP networking code clearly did not exist in 32/V
and thus had been developed entirely by Berkeley and its contributors.
The BSD originated networking code and supporting utilities were
released in June 1989 as Networking Release 1, the first freely
redistributable code from Berkeley. (IBM Ex. 645 at 40-41.)
Under SCO’s contract theory, the entirety of the BSD operating
system product in which TCP/IP was first implemented, including TCP/IP
itself, would be a “Derivative Work” subject to SCO’s
control. As such, SCO could control TCP/IP as it now seeks to control
IBM’s RCU technology. Since the entire internet is built upon
TCP/IP, the code, methods and concepts of which must be known to
internet programmers in order for the internet to function, SCO would be
able to claim control over the entire internet and every
internet-enabled device in existence, such as: cell phones, Blackberry
devices, network hardware, and even some space satellites.
The hypothetical TCP/IP claim SCO could make under its contract theory
is diagrammed below:
As this illustration should make clear, SCO’s contract theory, if
accepted, would lead to absurd results.
Although Berkeley did eventually create a version of its product
unencumbered by AT&T UNIX licensing restrictions, the version of
BSDI’s “BSD” operating system in which TCP/IP was
first implemented was based on AT&T UNIX code. (IBM Ex. 645 at40.)
See, e.g., http://www.starband.com. SCO is aware of the potential scope
of its claims, as it in fact argues in its opposition to IBM’s
Tenth Counterclaim that material it purports to control is important
because the removal of it, “would make the World Wide Web grind to
a halt”.(DJ Opp’n Br. at 66.)