Here is the December 19 letter to Lehman Brothers, compared with the generic December 19th "Dear UNIX Licensee" letter, thanks to the creativity of Groklaw member Hykin. The blue is new material in the Lehman letter, and the red text is edited out of the UNIX Licensee letter and does not appear in the Lehman letter. It's helpful in several ways, one of them being that it shows what the missing words likely are in the Lehman Brothers letter. So... there wasn't just one form letter sent to everyone, after all.
UPDATE: The files that we thought were dropped were not. I have the PDF now and we can read it clearly. There were a couple of other tweaks, so be sure to note the changes.
An alert reader notes that SCO told IBM in discovery that there was only one form letter sent to all. It appears they spoke with forked tongue. Here is the relevant part of the discovery document:
(2) the letters SCO sent to UNIX licensees, Linux end-users and Fortune 1500 companies regarding Linux and/or AIX, or any responses it received to such letters;
(2) "The letters SCO sent to Unix licensees, Linux end-users and Fortune 1500 companies regarding Linux and/or AIX, or any responses it received to such letters.” Regarding the letters sent in May and December 2003, there is only the form letter, which obviously you have downloaded from SCO's website, and the distribution list. There are not copies of all 1500 letters that were sent out. The form letter was previously produced at Bates 1269622-1269623. In addition, to the extent you want the distribution list used for the mail merge, we can provide this as well.
The December letter was created after the documents were collected from SCO, so it would not have been in production. Again, although you already have a copy of the form letter, we will provide it if you want it.
Regarding the responses to each of these letters, SCO will check to see if it received any responses to the May letter. To the extent it has received responses to the December letter, those responses obviously were received after documents were collected from the client. To the extent you want these responses, we can collect those documents and provide them to you as they are kept in the ordinary course of business.
See what happens when you try to hide from so many eyeballs?
December 19, 2003
Chairman & CEO
Lehman Brothers Holdings, Inc.
Re: The SCO Group, Inc. ("SCO")
Dear Unix Licensee Mr. Fuld:
In May 2003. SCO warned about enterprise use of the Linux operating system in violation of its intellectual property rights in UNIX technology. Without exhausting or explaining all potential claims, this letter addresses one specific area in which certain versions of Linux violate SCO's rights in UNIX.
In this letter we are identifying a portion of our copyright protected code that has been incorporated into Linux without our authorization. Also, our copyright management information has been removed from these files. These facts support our position that the use of the Linux operating system in a commercial setting violates our rights under the United States Copyright Act, including the Digital Millennium Copyright Act. We are notifying you of these facts so you can take steps to discontinue these violations. We believe these violations are serious, and we will take appropriate actions to protect our rights. No one may use our copyrighted code except as authorized by us. The details our position are set forth below. Once you have reviewed our position, we will be happy to further discuss your options and work with you to remedy this problem.
Certain copyrighted application binary interfaces ("ABI Code") have been copied verbatim from the our copyrighted UNIXSystem V code base and contributed to Linux for distribution, under the General Public License ("GPL") without proper authorization and without copyright attribution. While some application programming interfaces ("API Code") have been made available over the years through POSIX and other open standards, the UNIX System V ABI Code has only been made available under copyright restriction. AT&T made these binary interfaces available in order to support application development to System V-basedUNIX operating systems and to assist System VUNIX licensees [in] the development process. The System VUNIX ABI's were never intended or authorized for unrestricted use or distribution under the GPL in Linux. As the copyright holder, SCO has never granted such permission. Nevertheless, many of the ABIs contained in Linux, and improperly distributed under the GPL, are direct copies of our UNIX System copyrighted software code.
Any part of any Linux file that includes the copyrighted binary interface code must be removed. Files in Linux version 2.4.21 and other versions that incorporate the copyrighted binary interfaces include:
The code identified above was also part of a settlement agreement enter[ed] between the University of California at Berkeley and Berkeley Systems Development, Inc. (collectively "BSDI") and UNIX Systems Laboratories, Inc. regarding alleged violations by BSDI of USL's rights in UNIX System V technology. The settlement agreement between USL and BSDI addressed conditions upon which BSDI could continue to distribute its version of UNIX, BSD Lite 4.4, or any successor versions, including certain "UNIX Derived Files"; which includes the ABI Code. One condition was that BSD retain USL copyrights in 91 files (the "UNIX Derived Files"). A complete listing of the UNIX Derived Files is attached. The ABI Code identified above are is part of the UNIX Derived Files and, as such, must carry USL / SCO copyright notices and may not be used in any GPL distribution, inasmuch as the affirmative consent of the copyright holder has not been obtained, and will not be obtained, for such a distribution under the GPL.
Use in Linux of any of ABI Code or other UNIX Derived Files code identified above constitutes a violation of the United States Copyright Act. Distribution of the copyrighted ABI Code, or binary code complide using ABI code, Also, distribution of copyrighted code identified above as part of a source or binary distribution of Linux, with copyright management information deleted or altered, violates the Digital Millennium Copyright Act ("DMCA") codified by Congress at 17 U.S.C. Section 1202. DMCA liability extends to those who have reasonable grounds to know that a distribution re-distribution as required by the GPL) of the altered code or copyright information will induce, enable, facilitate, or conceal an infringement of any right under the DMCA. In addition, neither SCO nor any predecessor in interest has ever placed an affirmative notice in Linux that the copyrighted code in question could be used or distributed under the GPL. As a result, any distribution of Linux by a software vendor or a re-distribution of Linux by an end user that contains any of the identified UNIXSystem V code violates SCO's rights under the DMCA, insofar as the distributor knows of these violations.
As stated above, SCO's review is ongoing and will involve additional disclosures of code misappropriation. Certain UNIX code, methods and concepts, which we also claim are being used improperly in Linux, will be produced in the pending litigation between SCO and IBM under a confidentiality order.
Thank you for your attention to these matters.
THE SCO GROUP, INC.
Ryan E. Tibbitts