SCO's Amended Complaint Online

Tuesday, June 17 2003 @ 06:06 PM EDT

Contributed by: PJ

Go to this SCO page, and you can read all the gory details.

Here's the essence of their claim:

"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.

"3.      A variant or clone of UNIX currently exists in the computer marketplace called [base "]Linux.[per thou]  Linux is, in material part, based upon UNIX source code and methods, particularly as related to enterprise computing methods found in Linux 2.4.x releases and the current development kernel, Linux 2.5.x.  Significantly, Linux is distributed without a licensing fee and without proprietary rights of ownership or confidentiality.

"4.      The UNIX software distribution vendors, such as IBM, are contractually and legally prohibited from giving away or disclosing proprietary UNIX source code and methods for external business purposes, such as contributions to the Linux community or otherwise using UNIX for the benefit of others.  This prohibition extends to derivative work products that are modifications of, or based on, UNIX System V source code or technology.    IBM and certain other UNIX software distributors are violating this prohibition, en masse, as though no prohibition or proprietary restrictions exist at all with respect to the UNIX technology.  As a result of IBM[base ']s wholesale disregard of its contractual and legal obligations to SCO, Linux 2.4.x and the development Linux kernel, 2.5.x, are filled with UNIX source code, derivative works and methods.  As such, Linux 2.4.x and Linux 2.5.x are unauthorized derivatives of UNIX System V. " 

One other interesting bit of news is that the say IBM didn't make them any offers to resolve the situation:

"9.      To that end, SCO did everything reasonably in its power to exert a good faith effort to resolve the termination of IBM[base ']s UNIX contract rights.  Conversely, during the 100-day period, IBM did not set forth a single proposal or idea for cure."

SCO also answers IBM's affirmative defense about improper venue:

17.  Venue is properly situated in this District pursuant to 28 U.S.C. §1391 in that IBM maintains a general business office in this District and a substantial part of the events giving rise to the claims alleged herein occurred in this District.

I think they may find it hard to convince an honest judge of that. What they are saying is that IBM should have to travel to Utah for the case, because they have an office there.

The pejorative bicycle language is gone which tells us that they noticed that went over like a lead balloon and maybe that they found out that it wasn't true. I think these attorneys are not geeks. I know, last time I looked, Boies didn't even use email. His secretary did that for him.

I finally got comments functionality turned on, so, as you read all the details in this complaint, you may notice some other things that aren't accurate, from what you know. If so, either post a comment or email me and I'll post the information you provide, as I can.

An observant reader sent me this, showing, once again, evidence that any identical code and any identical comments could have originated from Caldera employees themselves making contributions to the Linux kernel:

"You might want to check over this post to the linux-ia64 mailing list,starting with one interesting comment, which may most damning of all ( 'I know some other IA-64 OS uses that mechanism. I'm not sure how much perfermance gain we can get by that in Linux, though.'

"Note that the date of the above is after the take over by Caldera, in which he admits knowing the internal details of 'some other IA-64 OS', given Jun's time at SCO, this could only be the Unixware IA-64 port, Old SCO half of the Monterey Project. Then compare this post of Jun's including the comments To this actual part of the Linux kernel;a=ia64#L229 "

Of course, SCO recently said their big issue isn't identical code; it's derivative code.

"Those remedial measures, however, seem to point toward some sort of royalty payment, as SCO does not believe that its intellectual property can be easily extracted from Linux. Not only are there lines of SCO's code in Linux, but also derivative products based on SCO intellectual property have been created, Sontag said. Getting all of the protected bits out, assuming SCO's claims are valid, would be a huge chore. 'Our biggest issues are with the derivative code,' he said. 'It would be almost impossible to separate it out.'"

Here is SCO's derivative code claim from the Amended Complaint. Keep in mind that they can claim whatever they like (up to the point of frivolous lawsuit -- there are sanctions for that) but they are making broad claims here, and they will have to prove them to a judge's satisfaction:

21.  The UNIX operating system was originally built by Dennis Ritchie, Ken Thompson and other software engineers at AT&T Bell Laboratories.  After successful in-house use of the UNIX software, AT&T began to license UNIX as a commercial product for use in enterprise applications by other large companies.

"22.  Over the years, AT&T Technologies, Inc., a wholly owned subsidiary of AT&T, and its related companies licensed UNIX for widespread enterprise use.  IBM, Hewlett-Packard, Inc. ('HP'), Sun Microsystems, Inc. ('Sun'), Silicon Graphics, Inc. ('SGI') and Sequent became some of the principal United States-based UNIX licensees, among many others.

"23.  IBM, HP, Sun, SGI and the other major UNIX vendors each modified UNIX to operate on their own processors.  Thus, for example, the operating system known as 'HP-UX' is HP[base ']s version of UNIX.  HP-UX is a modification of and derivative work based on UNIX System V source code. 

"24.  Similarly, the operating system known as Solaris is Sun[base ']s version of UNIX.  Solaris is a modification of, and derivative work based on, UNIX System V source code.  

"25.  SGI[base ']s UNIX-based operating system is known as 'IRIX.'  IRIX is a modification of, and derivative work based on, UNIX System V source code.

"26.  IBM[base ']s UNIX-based operating system is known as 'AIX.'  AIX is a modification of, and derivative work based on, UNIX System V source code.  

"27.  Sequent[base ']s UNIX-based operating system is known as 'DYNIX/ptx.'  DYNIX/ptx is a modification of, and derivative work based on, UNIX System V source code. 

"28.  The various identified versions of UNIX are sometimes referred to as UNIX 'flavors.'  All commercial UNIX 'flavors' in use today are modifications of and derivative works based on the UNIX System V Technology ('System V Technology').  Were it not for UNIX System V, there would be no UNIX technology or derivative works available for IBM and others to copy into Linux.

"29.  SCO is the sole and exclusive owner of all Software and Sublicensing Agreements that control use, distribution and sublicensing of UNIX System V and all modifications thereof and derivative works based thereon.  SCO is also the sole and exclusive owner of copyrights related to UNIX System V source code and documentation and peripheral code and systems related thereto."