SCO's Shifting Sands, Part 1 --

Saturday, September 06 2003 @ 01:49 PM EDT

Contributed by: PJ

SCO's Shifting Sands, Part 1 --
Does SCO Own UNIX?



I was sent some research, compiled by a reader, who offered it to Groklaw. Naturally, I accepted. There is so much to it, I can only put up what I can confirm and verify myself, so it'll be appearing bit by bit, subject by subject. At the end, I'll collect it together in one document and make it a permanent page.

The overall theme is contradictions in SCO's presentation of the facts and of its position, which has changed several times over, so the final document will be entitled, "SCO's Shifting Sands". While some of the material has been touched on here and elsewhere, putting it all in one place has a cumulative effect which is impressive, and I believe some of this research, as you'll see for yourself over time, is unique.

So, with that introduction, here is the first segment, whether SCO is the "owner of the UNIX® operating system" or not.

The rest of this article is the reader's magnum opus, part one, with no further commentary from me:

1. SCO "owner of the UNIX® operating system" - or maybe not?

(a) SCO has repeatedly claimed to be the "owner of the UNIX operating system" (and other similar claims - important: note singular "operating system"). For example:
A press release dated 19 August 2003, begins:

"LINDON, Utah, Aug. 19 /PRNewswire-FirstCall/ -- The SCO Group, Inc. (Nasdaq: SCOX - News), the owner of the UNIX® operating system, today announced the appointment of Gregory Blepp as vice president of SCOsource. Blepp will report to Chris Sontag, the senior vice president and general manager of SCOsource, the division of SCO tasked with protecting and licensing the company's UNIX intellectual property."

A press release dated 18 August 2003 in the "About SCO" section contains (incidentally a number of other press releases issued on the same day contain a different footnote):

"The SCO Group (Nasdaq: SCOX - News), the owner of the UNIX operating system, helps millions of customers in more than 82 countries to grow their businesses. Headquartered in Lindon, Utah, SCO has a worldwide network of more than 11,000 resellers and 8,000 developers. SCO Global Services provides reliable, localized support and services to all partners and customers. For more information on SCO products and services, visit http://www.sco.com"

A press release dated 6 June 2003, contains:

"'SCO is the owner of the UNIX operating system, as well as all of the UNIX contracts, claims and copyrights necessary to conduct that business,' said Sontag. 'None of the litigation we are currently involved with asserts claims based on copyrights. Because others have called into question SCO's ownership of the UNIX and UnixWare copyrights, we are satisfied that we have now proven without a doubt that SCO owns those copyrights.'"

In a Wired News article by Michelle Delio, dated 7 March 2003, the following appears:

"SCO, based in Lindon, Utah, owns the rights to the Unix System V operating system technology, which was developed at AT&T Bell Labs in the 1960s. . . .On Thursday McBride added: 'SCO is in the enviable position of owning the Unix operating system. It is clear from our standpoint that we have an extremely compelling case against IBM.'"

In an eWeek article by Peter Galli, dated 6 March 2003, the following appears:

"'SCO is in the enviable position of owning the UNIX operating system,' said Darl McBride, president and CEO, SCO, in an interview with eWeek Thursday. 'It is clear from our standpoint that we have an extremely compelling case against IBM. SCO has more than 30,000 contracts with UNIX licensees and upholding these contracts is as important today as the day they were signed.'

"McBride said the bottom line was that SCO owned the source code to Unix and the right to that operating system. IBM had taken AIX and made it available to the Linux community in an unlawful way."


In both SCO's original complaint in the IBM case - and in the amended complaint in the same case, SCO asserts UNIX is a particular computer operating system (important note: singular use of operating system), and that SCO owns it.

From SCO's original March complaint, available here.

"1. UNIX is a computer operating system program and related software originally developed by AT&T Bell Laboratories ("AT&T"). SCO/UNIX is a modification of UNIX and related software developed by SCO and its predecessors. UNIX and SCO/UNIX are widely used in the corporate, or "enterprise," computing environment.

"10. UNIX is a computer software operating system. Operating systems serve as the link between computer hardware and the various software programs ("applications") that run on the computer. Operating systems allow multiple software programs to run at the same time and generally function as a "traffic control" system for the different software programs that run on a computer.


From SCO's amended complaint in the IBM case, also available here, the following assertions are made:

"1. UNIX is a computer operating system program and related software originally developed by AT&T Bell Laboratories ('AT&T'). UNIX is widely used in the corporate, or 'enterprise,' computing environment.

"2. Through a series of corporate acquisitions, SCO presently owns all right, title and interest in and to UNIX and UnixWare operating system source code, software and sublicensing agreements, together with copyrights, additional licensing rights in and to UNIX and UnixWare, and claims against all parties breaching such agreements. Through agreements with UNIX vendors, SCO controls the right of all UNIX vendors to use and distribute UNIX. These restrictions on the use and distribution of UNIX are designed to protect the economic value of UNIX."


And:

"18. UNIX is a computer software operating system. Operating systems serve as the link between computer hardware and the various software programs ('applications') that run on the computer. Operating systems allow multiple software programs to run at the same time and generally function as a 'traffic control' system for the different software programs that run on a computer."

(b) However UNIX® is in fact a registered trademark of The Open Group.
(i) The Open Group says on their web site:

"The Open Group holds the definition of what a UNIX system is and its associated trademark in trust for the industry."

(ii) SCO themselves acknowledge the trademark, in the footnotes of their own press releases.

(iii) Furthermore SCO's UNIX products have been certified by The Open Group; for example versions of SCO Unixware are listed as UNIX 95 on this page.

(iv) Furthermore SCO is in fact a "Regular Member" of The Open Group according to a list last updated on 31 August 2003.

(v) Furthermore various definitions of what UNIX is ("specifications"), are US and/or international standards. For example, the core volumes of Version 3 of the single UNIX specification were approved as an international standard, ISO/IEC 9945:2002, in the year 2002. (Version 2 of the single UNIX specification was made available freely on the web by The Open Group in 1997). See this page.

It is therefore reasonable that the Open Group's description and definition of UNIX is not only the correct one, but at least sometimes, the one accepted by SCO.
(c) The Open Group clearly states that UNIX is not one particular operating system (as some SCO documents/reports/court-filings suggest), but rather a group of operating systems ("multiple implementations" - important: note plural) that conform to their specified standard:
Furthermore, each different UNIX operating system need not be implemented in terms of a particular set of source code. The Open Group even points to at least one independent implementation of UNIX operating systems that are free of the particular set of source code that SCO purports to own.

"As the owner of the UNIX trademark, The Open Group has separated the UNIX trademark from any actual code stream itself, thus allowing multiple implementations. Since the introduction of the Single UNIX Specification, there has been a single, open, consensus specification that defines the requirements for a conformant UNIX system."

On this page, they explain the historical background:

"In 1994 Novell (who had acquired the UNIX systems business of AT&T/USL) decided to get out of that business. Rather than sell the business as a single entity, Novell transferred the rights to the UNIX trademark and the specification (that subsequently became the Single UNIX Specification) to The Open Group (at the time X/Open Company). Simultaneously, it sold the source code and the product implementation (UNIXWARE) to SCO. The Open Group also owns the trademark UNIXWARE, transferred to them from SCO more recently."

Further acknowledgement that multiple independent implementations (important - note plural) of UNIX operating systems are at least conceivable, The Open Group says:

"Will the UNIX Brand criteria allow Microsoft to brand NT or others to brand proprietary environments?

"The Open Brand is open to any supplier whose product meets the published criteria. Many products that have been traditionally regarded as proprietary already have the XPG4 Base brand. For those products, additional work may be required to comply with the additional specifications (networking, terminal interfaces, etc.) that comprise the definition of a UNIX system."


More acknowledgement that multiple independent implementations (important - note plural) of UNIX are at least conceivable, is here:

"What about Windows® NT?

"Microsoft® Windows NT was developed as a completely new, state of the art, 32 bit operating system. As such, it has no connection with the UNIX system source code. However, market demand for POSIX.1, POSIX.2 has led to developments by several companies of add-ons that provide partial functionality. Should the functionality meet the requirements of the UNIX brand then indeed it could become a registered UNIX system.


The Open Group goes on to say, that multiple independent implementations (important - note plural) of UNIX operating systems are not only conceivable - but at least one has already happened:

"What about IBM®'s OS/390?

"IBM has been quietly working on its mainframe operating system (formerly MVS) to add open interfaces for some years. In September 1996, The Open Group announced that OS/390 had been awarded the X/Open UNIX brand, enabling IBM to identify its premier operating system to be marked UNIX 95. This is a significant event as OS/390 is the first product to guarantee conformance to the Single UNIX Specification, and therefore to carry the label UNIX 95, that is not derived from the AT&T/ SCO source code."


The Open Group have even released a document giving background information pertaining to the SCO v IBM case. While they take no position on any contractual dispute between IBM and SCO, The Open Group seeks clarity on the use of their UNIX trade mark, and include the following statement:

"Regarding SCO's positioning on UNIX, The Open Group would like to make it clear that SCO holds the rights ONLY to the operating system source code (originally licensed by AT&T) and related intellectual property and DOES NOT OWN the UNIX trademark itself or the definition (the Single UNIX Specification) of what the UNIX system is.

"Reference to the SCO web site shows that they own certain intellectual property and that they correctly attribute the trademark to The Open Group. SCO has never owned "UNIX". SCO is licensed to use the registered trademark UNIX "on and in connection" with their products that have been certified by The Open Group, as are all other licensees.

"These are the ONLY circumstances in which a licensee may use the trademark UNIX on and in connection with its products.

"Statements that SCO 'owns the UNIX operating system' or has 'licensed UNIX to XYZ', are clearly inaccurate and misleading."
(d) Thus, one might conclude, that contrary to the SCO's assertions:
(i) UNIX® is NOT a particular operating system - but a group of operating systems (note: plural) which share common characteristics.

(ii) UNIX® operating systems (note: plural) need not be derived from any particular set of source code. The Open Group (who determine what is and isn't UNIX, even according to SCO):
. explicitly states that allowing "multiple [independent] implementations" (note: plural) as being a goal of their work

. gives examples of possible future independent UNIX implementations

. gives an example of already existing independent UNIX implementation (S/390)

. explicitly disavows statements that "SCO owns the UNIX operating system"
(iii) SCO somehow manages the difficult, and we would opine inconsistent, act of simultaneously:
. accepting most or all of The Open Group's position (by acknowledgement in press releases of The Open Group trademark (presumably under license), by membership in The Open Group, and by past certification of SCO products by The Open Group),

. and either denying, or taking a wildly different position from, the Open Group's position (various assertions implying that UNIX is single operating system, and stating SCO is the "owner the UNIX operating system").
We would therefore suggest that there is clear inconsistency between SCO's statements and actions. We would also conclude that there is also a clear inconsistency between SCO's statements and publicly available and verifiable information.


The AT&T source codes, therefore, would appear to be only one particular implementation of a UNIX operating system. However it is entirely possible (and has in fact already occurred as previously cited for S/390) for other UNIX operating systems to exist, which do not depend on licensing or access to the AT&T source code.

Furthermore, operating systems implemented using the AT&T source code do not automatically fall within the definition of UNIX®. This is confirmed at this page, which describes allowable uses of the UNIX® trade mark:

"If a vendor licenses source code from SCO, why do they need a TMLA from The Open Group?

"Licensing source does not entitle a vendor to use the UNIX trade mark. SCO holds the rights ONLY to the operating system source code (originally licensed by AT&T) and related intellectual property and DOES NOT OWN the UNIX trademark itself or the definition (the Single UNIX Specification) of what the UNIX system is. AT&T always required the vendor to have a TMLA as well as a source code licence."


In other words, the definition of UNIX, and any particular operating system implementation are entirely separate. Even if SCO were to have undisputed ownership of the AT&T source code, and the AT&T implementation of a UNIX operating system, with no legal limitations, it would not follow that SCO had any rights on independent implementations of UNIX operating systems, according to the Open Group's explanation. This is confirmed by numerous references in section (c) , and in particular by the historical background described here:

"In 1994 Novell (who had acquired the UNIX systems business of AT&T/USL) decided to get out of that business. Rather than sell the business as a single entity, Novell transferred the rights to the UNIX trademark and the specification (that subsequently became the Single UNIX Specification) to The Open Group (at the time X/Open Company). Simultaneously, it sold the source code and the product implementation (UNIXWARE) to SCO. The Open Group also owns the trademark UNIXWARE, transferred to them from SCO more recently."

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