Did SCO Accuse IBM Publicly? Listen to this Interview and Decide

Wednesday, October 29 2003 @ 01:43 PM EST

Contributed by: PJ

Dan Farber did an interview with Darl McBride on Face to Face back on July 22, 2003, which you can see and listen to here if you use Real One Player or Windows Media Player. Just scroll down until you see the McBride mug shot. LHJ has kindly made a transcript for us, and I am providing some snips here. If you find any errors, please let us know. McBride made some comments about IBM that are pertinent with respects to SCO's claim in its Memorandum of Law in Opposition to IBM's Motion to Compel Discovery that it never publicly accused IBM of infringement.

Here is what SCO wrote in its Memorandum in Opposition :

"Throughout its memorandum, IBM makes repeated reference to SCO's trade show and a particular presentation about SCO's contractual rights made at that trade show. IBM incorrectly asserts that during that presentation, SCO identified 'four categories of alleged "misappropriation" by IBM: (1) literal coping; (2) derivative works; (3) obfuscation; and (4) non-literal transfers.' (IBM Mem., p. 6)(parentheticals omitted). The slides from the SCO Forum trade show relied upon by IBM (IBM Mem., Exhibit F), corroborate that SCO has not publicly made any such allegation against IBM."

Yet in the Face to Face interview, note what McBride said about IBM:

"DM: Right, so when we started off this problem with IBM, it was very clear that IBM had donated things improperly into the open source community. That was the basis for our lawsuit against IBM, among other things, but that was the primary driver.

"And during the period of time shortly after filing the lawsuit until recently when they came back and responded, we had a 60 day period there where we turned 3 different teams of code programmers loose on the codebases of AIX, Unix and Linux. And they came back with - independently - we had the three teams - one was a set of high-end mathematicians, rocket scientist, modeling type guys. Another team was based on standard programmer types. A third team were really spiffy on agent technology and how all of this technology was built in the first place. So the three teams came back independently and validated that there wasn't just a little bit of code showing up inside of Linux from our Unix intellectual property base. There was actually a mountain of code showing up in there. Now if you look at the types of code, we really see them in three different buckets. . . .

"DF: Did the symmetrical multi-processing actually come from SCO or its licenses, or did it come from IBM or some other organization?

"DM: When you look at the types of code that are in Linux today that are violating, there's really three types. There's line by line code that came right out of our System V source tree. There's derivative works code that came from vendors that we have license protections against them donating. And then there is basically non-literal implementations where they've munged code or obfuscated it to make it look like it's not.

"The biggest concerning areas are the direct line by line and these derivative works code. The derivative works is the main area that IBM has been in violation of. . . .

"We're basically saying in the late 2000's or pre-2000, you had two codebases that had the NUMA technology - non uniform memory architecture - that allows high end scalability inside of them. It was Unixware and it was Dynix that Sequent held. OK, so IBM buys Sequent while we're doing Project Monterey. Within the last 18 months, two years, they have in fact donated the Sequent NUMA code, the Sequent RCU code into Linux. OK, so part of it is code that we had as part of our Unixware product. Other parts such as RCU were things that were clearly derivatives. I mean if you look at the RCU code it could not be more clear that it's a derivative because in the copyright statements where IBM donated it into open source -- you can go out and look on sourceforge yourself -- it lists out that in fact RCU is a derivative work of Dynix, and Dynix is in fact a derivative work of System V. . . .

"DF: Speaking about IBM, you were quoted as saying 'Those guys know what it's going to come out in discovery and you hear a lot of rumors on the street that they're going to buy us out. Well I bet that's exactly what they want to do. The last thing they want to do is hear the testimony that's going to come out.' Is your strategy really to get acquired by IBM, to basically save your company from extinction?

"DM: No, our strategy is not that. Our strategy is to take this business that we have and get it back on track and moving again. It was rolling along very nicely at the end of the millennium. IBM approached us and said 'Hey let's do this thing called Project Monterey. Let's go to market together, file this thing with the Justice Department. Let's create 54% of the market share going into the new millennium.' It was all set up and then after the project was all done from a technology standpoint, IBM backed off and didn't go to market with us.

"And at the same time they did that, they jumped in bed with Red Hat and went off and started distributing Red Hat.

"Now just because they did that doesn't mean -- I mean at one level,yeah we can be upset and we can whine and moan about it -- but that doesn't create technically a legal violation. What creates the violations are when they actually go out and take our code, contribute that into open source that in fact does boost Red Hat. It does boost the other distros. And at the same time our revenue comes down from 230 million down to 60 million. At the same time the Linux marketplace is just booming."